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Monday, December 09, 2019

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Blue States Stepping Up Defense Against Republican Abortion Bans

It's tough to remain optimistic about abortion access right now, particularly in the face of such extremes from anti-abortion politicians and activists.

Take, for example, the Idaho Republican Party's refusal to include language in its platform that would allow abortion to save a pregnant person's life. Or the fact that Republicans are floating the idea that if they take the House back in November, they'll pass a federal abortion ban. Or the discussion over whether pregnant women should be allowed to travel to another state to obtain an abortion.

However, some states are moving to increase abortion access for patients and provide protection against prosecution if people are charged with what the texts of anti-abortion laws call "aiding and abetting," or with obtaining an abortion.

New York was one of the first states to take action, passing six bills designed to protect access once it became clear with the leak of the Supreme Court opinion in Dobbs v. Jackson Women's Health Organization that Roe would be overturned.

The state also issued millions of dollars in grants, including $25 million earmarked for an abortion provider support fund that will help increase provider capacity, allowing those providers to serve more patients. In announcing the $25 million grant, New York Democratic Gov. Kathy Hochul said that anecdotal evidence already pointed to an uptick in the number of patients from both Ohio and Pennsylvania coming to New York. More can be expected as bans in other states go into effect, she said; Ohio now has a six-week ban on the books.

Minnesota is also taking steps to protect abortion access. The state's Democratic governor, Tim Walz, signed an executive order requiring state agencies to protect people who provide or obtain abortions. Further, the executive order states that Minnesota will not assist other states that try to impose criminal or civil liability on someone seeking an abortion in Minnesota.

Earlier this month, a state district court judge overturned several of Minnesota's existing abortion restrictions, including a 24-hour waiting period and an "informed consent" requirement. The ruling also means that medication abortions can be offered by a variety of health care providers rather than just by doctors.

Advocates in Minneapolis are pushing the city to budget $800,000 to help fund groups that provide abortion funding and related support. It's vital for Minnesota to increase capacity because it is surrounded by states in which legislators are taking steps to ban or severely limit abortion.

Wisconsin has an 1849 abortion ban still on the books, and anti-abortion politicians argue that it is now in effect in the state. The state's attorney general has gone to court to argue that a 1985 law supersedes the earlier law.

Abortion is now fully banned in South Dakota, with no exceptions for rape or incest.

Late last year, California announced it would be a so-called sanctuary state for those in other states seeking abortions. This is especially necessary given that California is surrounded by states with legislatures controlled by anti-abortion politicians such as Arizona, where Republican Attorney General Mark Brnovich is pushing to have a Civil War-era abortion ban go into effect.

Clinics in California are hiring additional personnel and expanding hours to make abortion more available. Providers are also coordinating with abortion funds to help provide for ancillary costs, like travel and lodging. Hospitals are working to serve people with high-risk pregnancies who are forced to leave their states to receive care. A UCLA study predicts the state will see an additional 10,600 out-of-state patients seeking abortion care yearly.

Bans and severe restrictions are moving quickly toward enactment in Republican-controlled states. Eight states now have complete bans — Wyoming, South Dakota, Wisconsin, South Dakota, Missouri, Arkansas, Mississippi, and Alabama — and a New York Times tracker lists Tennessee and Idaho as states in which bans are expected soon.

As these restrictions move across the landscape, it will be ever more necessary for states that uphold abortion rights to continue to provide access for those in need.

State Bans Force Americans To Seek Abortion Meds Overseas

Right-wing legislators continue to push abortion bans early in pregnancy after the U.S. Supreme Court in January refused to enjoin or overturn S.B. 8, Texas' six-week abortion ban.

Concurrently, conservatives are also putting forward legislation seeking to ban or highly restrict access to medication abortion.

With this, people are beginning to look to providers outside the United States to access abortion pills.

Abortion access has plummeted in Texas after the state passed a ban on the procedure at six weeks that includes an enforcement mechanism allowing anyone anywhere to sue someone who "aids or abets" another person in obtaining after the prescribed time period.

In August 2021, there were over 5,400 abortions in the state, but that number dropped to 2,200, a decrease of 60%, in September 2021.

Although Texas has said it will release more statewide data monthly, as of early February 2022, only the September 2021 numbers were available.

At the same time that Texas made in-person abortion nearly impossible to access, the state also moved to cut off access to medication abortion pills. A law passed in December 2021 makes it a criminal offense resulting in possible fines of up to $10,000 and the threat of jail time for anyone who prescribes medication abortion pills remotely, through the mail or via telemedicine.

Even though Texas is attacking abortion access on all fronts, people in the state still need abortions. Seven surrounding states have seen a huge uptick in the number of Texans — an average of 1,400 per month — obtaining abortions in at least 34 clinics outside of the state.

Other people appear to be turning to providers outside of the United States for medication abortion pills. Aid Access, an international nonprofit that assists people in obtaining medication abortions, saw requests from Texas jump from a daily average of 10.8 per day to 137.7 per day immediately after S.B. 8 passed.

Aid Access, along with similar groups, such as Plan C Pills, use non-U.S. prescribers and providers to get abortion pills to people in states that have blocked access to medication abortion. This could become more widespread as more states pass restrictive abortion bans, some of which include restrictions on telehealth prescribing and mailing of abortion pills.

For example, on Jan. 1 of this year, Alabama began barring the use of telehealth for medication abortions, forcing people who are unable to travel to a clinic for the pills to seek a source outside the state. South Dakota is also pushing for an in-person requirement for people to obtain the pills. In South Dakota, that's especially problematic because the state has only one abortion provider, a Planned Parenthood clinic in Sioux Falls. A person living across the state from that city would have to drive for nearly five hours one way just to obtain a prescription for the medication.

Access to abortion is about to decrease in other places as well. Florida just banned all abortions after 15 weeks, and Idaho looks set to pass a six-week ban soon. If Texas is any guide, that will lead to a sharp decrease in abortions in those states, but an increase in the number of people obtaining the procedure outside of those states.

However, accessing abortion pills via non-U.S. providers is not necessarily without legal risk. Plan C Pills has a section on its website that details a possible issue, which is that a person could be prosecuted for obtaining abortion pills in a state where those pills are restricted. But it says the risk of prosecution is rare: Plan C Pills notes that in the last 20 years, 24 people have been prosecuted for self-managing abortions during a period in which around 100,000 people have self-managed abortions.

The website Repro Legal Healthline also provides information on possible legal risks. At this point, the site notes that it isn't aware of any case in which a person was arrested or investigated solely for ordering abortion pills online. That said, it states that there are at least four cases in which a person who ordered abortion pills online was later criminally charged for self-managing their abortion, and the fact that they had ordered medication abortion pills online was used against them.

The necessity of accessing abortion pills from prescribers and pharmacies outside the United States will likely only continue to increase as states continue to pass bans and tighten access to medication abortion. The number of self-managed abortions will likely continue to rise, as will the number of people seeking abortions in states that are preserving access.

As Amy Hagstrom Miller, the founder, president, and CEO of the abortion provider Whole Woman's Health, put it, "The same amount of people still need abortions as they did before they started all these bans."

Reprinted with permission from American Independent

Radical New Hampshire Republicans Seek To Kill Reproductive Healthcare

New Hampshire has long had a history of supporting abortion rights, but that's changed. Now, clinics that provide abortion in the state are being denied funding, and Republican Gov. Chris Sununu — who claimed to be "pro-choice" when he ran for re-election in 2018 — signed into law the first abortion ban in the state's history last month.

The move to undermine funding for clinics that provide abortions began last year, when New Hampshire's Executive Council, which must approve all state contracts, added an audit provision for clinics that receive money from the state's family planning program. The council alleged, despite much evidence proving otherwise, that state funds were being used for abortions at places like Planned Parenthood, which is illegal in New Hampshire.

There was no question the imposition of an audit provision was designed to delay — or strip — funding to the clinics. The timing of the audit provision requirement ensured that clinics would not receive money before the start of the next fiscal year. At the time, the New Hampshire Department of Health and Human Services warned the Republican-controlled Executive Council that non-abortion care like breast cancer screenings would be severely disrupted by cutting off these funds.

Even though all the clinics have undergone audit proceedings, the Executive Council denied them funding in September, December, and again earlier this week.

In September, while the audits were still in process, the Council refused to approve contracts for clinics despite the state's Health and Human Services Commissioner, Lori Shibinette, saying all state providers were in compliance and none of them used public funds for abortions.

In December, the audits were complete and confirmed no commingling of funds. Indeed, Shibinette explained to the Council that the audit found the state "doesn't even pay enough to fund their regular family planning," much less subsidizing any abortion services. However, the audits did find other minor financial issues, but nothing related to using government funds for abortion.

The clinics then addressed these audit issues and corrected all problems, which the state confirmed. Still, it didn't matter. Earlier this week, the Executive Council voted yet again to deny funding. David Wheeler, who has led the charge against funding the clinics, said there wasn't enough evidence that state money wasn't being used to fund abortions even with an audit. When Shibinette asked Wheeler and the other Republicans on the Executive Council what information would be sufficient to satisfy them, they had no answer.

As Republicans on the Executive Council strangle clinic funding, other anti-choice Republicans in the state have rammed through new laws that restrict access to abortion. Republicans attached the abortion bills to the state budget, which required Sununu to agree to the bills or veto the entire budget mid-pandemic.

As of Jan. 1, 2022, the state has its first gestational ban ever, which bars abortions after 24 weeks and has no exceptions for the pregnant person's health.

Now, providers who perform an abortion after the 24-week mark could face both civil and criminal penalties, including being charged with a felony. If married to the mother, a father can also obtain monetary damages if the pregnant person has an abortion after 24 weeks.

There's also an ultrasound requirement. If people seek abortions in the early stages of their pregnancies, ultrasounds are internal, not external. This means pregnant people have to undergo vaginal penetration with a camera and, if they are uninsured, pay around $400 for the process.

Republicans, who control both legislative chambers in the state, aren't stopping with a 24-week abortion ban or an ultrasound requirement. They've drafted new bills, including a so-called "heartbeat" ban, which functions as a six-week ban on abortion. Another law Republicans are pushing would allow biological fathers to ask a court to prohibit their partners from having abortions.

What all this shows is that abortion access is precarious even in states where there has been a historic commitment to ensuring that abortions remain legal and accessible. If abortion opponents continue to control New Hampshire's Legislature and governorship, the state will likely pass even more laws restricting access.

Reprinted with permission from American Independent

The Supreme Court Abortion Case That Nobody Is Discussing Now

When it comes to abortion cases at the U.S. Supreme Court, all eyes have been on Texas and Mississippi. However, a Kentucky case that has largely flown under the radar represents yet another attack on abortion rights.

In 2018, Kentucky passed a law banning the dilation and extraction method of performing an abortion. That method is the most common procedure for second-trimester abortions, in part because, as the American College of Obstetricians and Gynecologists explains, it is "medically preferred because it results in the fewest complications ... compared to alternative procedures."

Both the U.S. District Court for the Western District of Kentucky and the Sixth Circuit Court of Appeals ruled in favor of the plaintiffs, an abortion provider in the state. During the lower court proceedings, the Kentucky attorney general's office took no position on the law, saying only that it was not the entity that could enforce the ban. The office then moved to be dismissed from the case, and that was granted.

When the case was at the trial court, Andy Beshear, a Democrat who is now the governor of Kentucky, was the attorney general. Now, though, the attorney general for the state is a conservative Republican, Daniel Cameron. As legal counsel to then-Majority Leader Mitch McConnell, Cameron helped shepherd conservative judges through the confirmation process. He also made then-President Donald Trump's 2020 list of potential Supreme Court nominees, despite his actual legal experience being relatively slim.

Cameron has made no secret of being anti-choice, backing a "pro-life constitutional amendment" for the state. He also joined an amicus brief supporting Mississippi's 15-week previability abortion ban, which the Supreme Court will hear on Dec. 1.

Cameron's case, which will be heard on Tuesday, isn't strictly an abortion case. Rather, Cameron is arguing simply that his is the office that has the power to defend a state law — even if his office previously agreed to be dismissed.

No other state entity wants to defend the law because Beshear has blocked previous anti-choice moves by Cameron.

At the beginning of the pandemic in April 2020, the Kentucky legislature passed a bill that would have granted Cameron greater authority over abortion clinics. Beshear vetoed it. At the start of 2021, the legislature passed a similar bill, and Beshear vetoed it again, but the veto was overridden. The legislation allows Cameron to directly seek both criminal and civil penalties against abortion providers, even though Cameron's office doesn't directly regulate other sorts of health care. In fact, Cameron can now seek those penalties even if the agency regulating health care in the state, the Cabinet for Health and Family Services, disagrees.

Against this backdrop, Cameron is asking the Supreme Court to allow him to intervene to defend the dilation and extraction ban, despite the fact he is the only entity in the state that wants to defend it. If the Supreme Court lets him, he'll get to attempt to revive that ban. Earlier this year, the Fifth Circuit upheld a similar ban passed in Texas.

Trump was able to put six judges on the Sixth Circuit during his term, so that circuit may be amenable to such a ban as well.

In the end, Cameron's maneuvers are part and parcel of a full-court press from anti-abortion activists. The Guttmacher Institute, which tracks the passage of abortion restrictions, found that over 1,800 anti-choice bills have been introduced thus far in 2021, and 105 restrictions have been passed. With a Supreme Court that appears receptive to anti-abortion laws, Cameron may get his way.

Published with permission of The American Independent Foundation.

Republicans Push Texas-Style Abortion Bans Across Country

Reprinted with permission from American Independent

Last week, the U. S. Supreme Court let stand a Texas law that is the most restrictive abortion law in the nation. With that green light, other states are lining up to pass similar laws, and at this time, there isn't much way to stop them.

Anti-choice legislators in four states — Arkansas, Florida, South Carolina, and South Dakota — have already stated they will follow Texas's lead. They're planning on introducing bills that will mirror both the restrictive nature of Texas's law — a ban on abortion at six weeks — and the unique enforcement mechanism, which allows any citizen to sue someone who aids or abets an abortion. Several other states, including Nebraska, Kentucky, Louisiana, Oklahoma, and Ohio, will likely be considering similar laws.

In Florida, Ron DeSantis, the anti-abortion GOP governor, said his state would "look more significantly" at the Texas law and that he found it "interesting." In South Carolina, Larry Grooms, a GOP state senator, said the state would "move to pass legislation that would mirror what Texas did."

Jason Rapert, a GOP state senator in Arkansas who is mounting a lieutenant governor bid in that state for 2022, immediately posted a model bill from his organization, the National Organization of Christian Lawmakers. Rapert has stated he will file a Texas-style bill in his state immediately.

Rapert's Twitter feed makes clear that some legislators pushing bills that functionally outlaw abortion no longer feel tethered to whether those bills are good law under existing Supreme Court precedent. Instead, Rapert tweets about how the left has an "unrelenting demand for the innocent sacrifices of unborn children" and repeatedly refers to abortion as a "demonic force."

One day after the Texas law took effect, GOP Gov. Kristi Noem of South Dakota tweeted her office would "immediately review the new TX law and current South Dakota laws to make sure we have the strongest pro-life laws on the books in SD."

Noem's tweet is emblematic of the approach being taken by many abortion-hostile states. There's no discussion of what the voters might want. There's no belief that the existing restrictive laws might be enough — even in a state like South Dakota with only one clinic that offers abortions only twice per month. Rather, there's a rush toward imitating the Texas law simply because it is the most restrictive that has yet succeeded.

The states that have announced their intentions to replicate the law so swiftly may be taken by the notion that since the Texas law offloads enforcement from the state to private citizens, it insulates the state from lawsuits. States likeSouth Carolina and Arkansas just saw courts block their highly restrictive abortion laws. However, if they took those laws and "piggybacked" the Texas enforcement scheme onto them, a court might have to let the law stand, given that the Supreme Court did so in Texas.

There exists a chance that the Texas law will be overturned once it is completely litigated, as what happened at the Supreme Court was only that the court refused to block the law from taking effect. Indeed, some anti-abortion groups have stated they will continue to focus on the Mississippi 15-week pre-viability ban that the Supreme Court is set to hear this term. However, all that really means is that anti-abortion activists have more than one opportunity to utterly undo Roe v. Wade.

Published with permission of The American Independent Foundation.

Biden HHS Nominee Becerra Expected To Restore Reproductive Rights

President-elect Joe Biden has tapped Xavier Becerra, currently California's attorney general, to be his head of Health and Human Services. While much of Becerra's work at HHS will focus on the pandemic, his nomination represents an opportunity to restore reproductive health and abortion rights.

Much of the discussion of the future of abortion is focused on the Supreme Court, thanks to the 6-3 majority of hardline anti-abortion justices. However, there are regulatory steps that Becerra would be able to take that can help increase access to abortion, even as Roe v. Wade is attacked in the courts.

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Aborted Stem Cells Produced Trump's 'Miracle Cure' For Covid-19

When Donald Trump went to Walter Reed National Military Medical Center for treatment for the coronavirus, he benefited from a treatment that's not yet available to the public.

The antibody treatment from Regeneron, which Trump is now claiming "cured" him without evidence, has yet to be approved by the Federal Drug Administration. It's also derived from stem cell research.

That might be unremarkable but for the fact that Trump's administration has done everything it can to block research that relies on stem cells and fetal tissue. Trump's anti-abortion evangelical base is deeply opposed to research that relies on either of these because they have a tenuous connection to abortion.

Regeneron's embryonic stem cell line was cultured fromfetal tissue from an abortion. Fetal tissue research uses material that would otherwise be discarded and is obtained with the consent of people who have abortions.

Just last month, a group of 94 anti-abortion legislators thanked Trump for "his efforts to support pro-life policies" and requested that he "end taxpayer funding for human embryonic stem cell (hESC) research at the National Institutes of Health (NIH)." The group's press release said there was no proof of a "single patient's life being saved through embryonic stem cell treatments."

Similarly, James Sherley, who works for the anti-abortion Charlotte Lozier Institute, said any fetal tissue research is unethical if it "even in a small part contribut[es] to motivating elective abortions."

In 2018, a workshop at the National Institutes of Health concluded that fetal tissue research was the "gold standard" for many critical studies. In response, Marjorie Dannenfelser, president of the anti-abortion Susan B. Anthony List, said federal officials who promised fetal tissue research would continue were "out of step with the President's pro-life agenda" and that fetal tissue research "involve[d] harvesting the body parts of unborn children from induced abortion."

Dannenfelser and other anti-abortion activists prevailed. The administration created a Human Fetal Tissue Research Ethics Advisory Board composed mostly of people who have publicly opposed fetal tissue and embryonic stem cell research. The board voted to reject 13 of 14 applications.

This extremely restrictive view is shared by Amy Coney Barrett, Trump's nominee to replace Justice Ruth Bader Ginsburg on the Supreme Court. She's on record calling for doctors to be prosecuted for discarding unused or frozen embryos.

At the beginning of the coronavirus outbreak, an NIH researcher appealed to top officials to use fetal tissue to research potential coronavirus treatments. There's no record that he was ever allowed to do so. The researcher worked at the same laboratory, the Rocky Mountain Lab, where in 2018 the Trump administration put a halt to HIV research that would have used fetal tissue. The ban on fetal tissue research also hamstrings vital Alzheimer's and cancer research.

Even as he promises that hundreds of thousands of doses of Regeneron will be available, Trump has continued to rail against abortion, tweeting that Democrats are "fully in favor of (very) LATE TERM ABORTION, right up until the time of birth, and beyond—which would be execution." Last month, he went after Virginia Gov. Ralph Northam, saying that Northam, a Democrat, "is in favor of executing babies after birth."

Democrats do not favor abortion up until the moment of birth, nor do they favor executing babies.

It seems Trump is comfortable discarding his high-profile antipathy toward stem cell and fetal tissue research when it benefits him.

Published with permission of The American Independent Foundation.

Trump Court Nominee Would Jail Doctors Who Provide Reproductive Services To Women

It's well known that Amy Coney Barrett, Donald Trump's Supreme Court nominee, is anti-abortion. However, her views on other reproductive health issues, including fertilization and embryos, go far beyond merely opposing abortion. Indeed, she once signed onto a full-page ad that called for prosecuting doctors not just for performing abortions, but for discarding unused or frozen embryos.

During her 2017 confirmation hearings for her seat on the 7th Circuit U.S. Court of Appeals, Barrett gave the same type of vague, noncommittal answer that has become the hallmark of conservative judicial nominees: "All nominees are united in their belief that what they think about a precedent should not bear on how they decide cases."

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While Nominating Biden In Virtual Rollcall, Democrats Showcase America’s Beauty

The 2020 Democratic convention's roll call vote for its presidential nominee was an entirely new experience. Because of the coronavirus pandemic, states got to nominate Vice President Joe Biden from their home turf, and it was an opportunity to see the best of the country.

In what was termed the "Roll Call Across America," people from Alabama to Puerto Rico to Washington and, of course, Delaware. cast their votes for Joe Biden.

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Despite Pro-Choice Ruling, Supreme Court Still Threatens Abortion Rights

On Monday, abortion rights yet again narrowly survived another trip to the U.S. Supreme Court, with the majority holding that Louisiana's law requiring physicians to have admitting privileges at a nearby hospital was unconstitutional. Chief Justice John Roberts sided with the liberal wing of the court, but his concurrence makes clear he still supports making abortions very difficult to get.

Louisiana's admitting privilege law was nearly the exact same restriction Texas had enacted in 2013. That law was the subject of a case, Whole Women's Health v. Hellerstedt, that the court decided four years ago.

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Republicans Seek To Ban Telemedicine For Abortion Services

At a time when telemedicine is becoming both more available and more necessary because of the coronavirus pandemic, Republicans are working to ban telehealth procedures for medication abortions.

Lack of access to telemedicine for abortion services may mean that people can't get abortions until later in pregnancy or possibly not get them at all.

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Anti-Abortion Politics Blocks Research On COVID-19 Vaccine

Donald Trump is angling for a cure to the coronavirus outbreak, but thanks to his hardline anti-abortion stance, he’s not interested enough to allow government researchers to use fetal tissue to help fight the virus.

Fetal tissue is obtained with the consent of people who have abortions, making it a frequent target of anti-abortion politicians.

A government immunologist at a National Institutes of Health laboratory has been asking the NIH to lift the ban on fetal tissue research during the pandemic. The Trump administration imposed that ban last year, despite the fact that fetal tissue research is vital.

Trump is very eager to show the world that the United States has a vaccine for the coronavirus. He reportedly tried to get a German company to make a vaccine for America only, an effort the German government wholeheartedly rejected.

On Thursday, he did a press conference where he bragged about a potential vaccine, a claim the FDA had to immediately rebut, noting that it hasn’t approved the drug for that use.

But the one thing he won’t do, apparently, is allow a promising line of research to continue because it relies on fetal tissue.

Researchers who spoke to the Washington Post explained that nongovernmental scientists have made significant strides using fetal tissue in research on coronaviruses similar to COVID-19. Those researchers have offered to work with the NIH to infect to run experiments on potential treatments.

However, none of that can happen because one of Trump’s key goals is appeasing anti-abortion hardliners. That was evident from his choice of Mike Pence as his running mate, and together he and Pence have decimated abortion access,  including barring Title X federal funds going to any organization that even discusses abortion with patients.

High-profile anti-abortion groups such as the Susan B. Anthony List have gotten unprecedented access to the White House to push a radical anti-abortion agenda. This underpins the recent campaign by Trump and Republican lawmakers to promote lies about later abortions being akin to “infanticide,” along with the recent flurry of “abortion survivor protection” bills meant to threaten doctors who perform the procedure.

In actuality, fetal tissue research is highly regulated. The National Institutes of Health provides guidance on how fetal tissue may be obtained and used. There are federal laws that specifically prohibit acquiring or transferring any fetal tissue for profit. Anyone that supplies fetal tissue has to show that informed consent was obtained when the tissue is collected.

Using fetal tissue a new idea. Researchers have used it since the 1930s and fetal tissue led to developing a polio vaccine. It’s also been used to test the efficacy of the German measles vaccine.

In an ironic twist, fetal tissue is also used to help understand fetal development, and may ultimately result in a decrease in miscarriages. Fetal tissue has been used in research to help treat immune system mismatches between the mother and fetus, detect genetic and metabolic diseases in the fetus, and to help develop techniques to treat hypertension and heart disease in mothers.

However, in June of last year, the Health and Human Services Department abruptly ended the ability of scientists to use fetal tissue in medical research. Those researchers were looking into diseases like cancer, Alzheimer’s, and Parkinson’s — diseases that affect millions of Americans.

Now, Trump’s anti-abortion obsession is blocking research into a cure for a deadly pandemic.

Watchdog Outfit Sues Over Kellyanne’s Violations Of Hatch Act

If Donald Trump won’t address the repeated Hatch Act violations of his senior adviser Kellyanne Conway, maybe the courts will do it for him.

Watchdog group Citizens for Responsibility and Ethics just filed a lawsuit seeking to hold Conway accountable for her dozens of violations of the Hatch Act, the federal law prohibiting government employees from campaigning while acting in their official government capacity. The group is asking a federal district court to require the U.S. Office of Special Counsel, an independent federal investigative and prosecutorial agency, to comply with the law and file a complaint.

All of this is necessary because Conway hasn’t just broken the law, she’s absolutely reveled in breaking the law. And why wouldn’t she? After violating the Hatch Act at least 50 times on her Twitter account alone, she suffered no consequences whatsoever. In fact, she was emboldened by the charge that she broke the law, declaring in on Fox News in June that she had “First Amendment rights” to violate the act.

The special counsel’s office is charged with investigating violations of the Hatch Act. Under law, when it finds a violation, it is required to file a complaint with the Merit Systems Protection Board. That’s because, while the office investigates the violations, Merit Systems Protection Board is the agency that can discipline, fine, and fire employees that violate the act.

As CREW points out in its complaint, federal statutes don’t give the special counsel’s office the discretion to decide not to refer a Hatch Act violation to the board. If it finds that a government employee has broken that law, it must present the complaint. There’s a narrow exception for government employees who were confirmed by the Senate. In that case, the office must present the complaint to the president instead.

In the case of Conway, the special counsel’s office has ignored that law. That’s even though, as CREW notes, the office “deemed Conway’s violations so egregious that they warranted the disciplinary action of her removal from federal service.” With that, it was required to forward a complaint because Conway is not an employee who was confirmed by the Senate. She’s just an adviser to Trump.

But instead of sending the complaint, in June 2019, the office punted and sent the matter directly to Trump, telling him she should be removed from her federal job “immediately.”

Unsurprisingly, Trump said he wouldn’t discipline or fire Conway, saying the special counsel’s office was “trying to take away her right of free speech, and that’s just not fair.” For her part, Conway mocked the referral, declaring, “Let me know when the jail sentence starts.”

Of course, Conway does have the right to free speech — just not while on the clock as a federal employee, paid by taxpayer funds. Put another way, Americans aren’t supposed to be paying Conway to campaign for Trump. But that’s exactly what Conway does.

She does media interviews in her official capacity as adviser to the president, and during those interviews made partisan statements about a number of Democrats, including presidential candidates Joe Biden, Bernie Sanders, and Cory Booker. She also uses her Twitter feed to tweet about Trump’s campaign rallies, including using his MAGA slogan, and to attack Democratic presidential candidate Sen. Elizabeth Warren.

All of these things are clearly forbidden under the Hatch Act, and career federal employees have been disciplined for much less flagrant behavior.

CREW isn’t asking the court to take any action against Conway or Trump. Indeed, what they’re asking for is quite modest. They’d like the court to order the Office of Special Counsel to file a complaint with the Merit Systems Protection Board about Conway, as required by law. This doesn’t even mean any discipline would be issued against Conway, as once the complaint is filed, it is up to that agency how they choose to address the matter. CREW is also asking the court to order the special counsel’s office to end its current policy of not filing complaints about any presidential appointee, even if that appointee is not confirmed by the Senate.

The current head of the the special counsel’s office, Henry Kerner, is a lifelong Republican who worked for deceased Sen. John McCain and Reps. Darrell Issa and Jason Chaffetz before being appointed by Trump to lead the office. Under Kerner, the office has been firm in its recommendations against Conway but also clearly wants to leave what happens up to Trump. That’s not the law, and CREW shouldn’t have to sue to get the the special counsel’s office — or Conway — to follow the rules.

Published with permission of The American Independent Foundation.

Feds Probing Giuliani On Possible Lobbying, Campaign Violations

Rudy Giuliani is reportedly under investigation. Again.

This time, according to Bloomberg News, it’s for alleged campaign finance violations, a failure to register as a foreign agent, and possibly for bribing foreign officials.

This round of investigations may be separate from the Southern District of New York’s (SDNY) investigation into his Ukraine dealings, which also spawned an investigation by three different congressional committees. In that instance, prosecutors want to know if Giuliani broke any lobbying laws. They also are looking into whether he committed any crime in trying to force the former U.S. ambassador to Ukraine, Marie Yovanovitch, out of her post.

Additionally, Bloomberg reports that federal prosecutors are looking into a conspiracy charge. One official also indicated that Giuliani’s activities “raise counterintelligence concerns as well” but that those things wouldn’t likely result in a criminal charge.

It’s unclear from Bloomberg’s reporting whether this latest round of potential charges is from the previously-reported investigation or whether the SDNY has two files open on Giuliani.

As a result of the probes into his behavior, Giuliani has been forced in recent weeks to assemble a legal team to represent him. The New York Times reported, however, that, despite having a “wide range of close associates — including former prosecutors and judges — who could have taken him on as a client,” Giuliani has struggled to convince several prominent law firms and high-powered attorneys to work with him.

“[A]t least four prominent attorneys declined for various reasons, according to people familiar with the matter,” the Times reported earlier this month. “…Mr. Giuliani’s connection to Mr. Trump, his unpredictability and his recent history of outbursts in his frequent television appearances could make him a challenging client. Lawyers who are solo practitioners were concerned that Mr. Giuliani, who is known to have difficulty delegating, would try to manage his own case, according to a person close to Mr. Giuliani.”

Giuliani was left to hire a person who had once been his intern when Giuliani was U.S. attorney. That lawyer, Mark Costello, also came close to representing Michael Cohen.

Cohen, Trump’s previous personal attorney, is currently serving prison time for campaign finance violations.

 

Published with permission of The American Independent.

Trump Aides Worked With GOP Activist Who Sought To Rig Census

The House Oversight and Reform Committee has obtained evidence showing that the Trump administration worked hand-in-hand with a GOP activist to try to rig the 2020 census.

Thomas Hofeller, who died last year, was a Republican activist who specialized in gerrymandering and redistricting. In 2015, he conducted a study that determined that having a citizenship question on the decennial census would disadvantage Democrats and be “advantageous to Republicans and Non-Hispanic Whites.”

During litigation over the Trump administration’s attempts to justify adding the question to the 2020 census, allegations appeared that Hofeller’s study had been instrumental in the administration’s decision to push for the question. The Justice Department flatly denied this, saying that the study “played no role” in the matter.

Now, the House Oversight Committee says it has material showing that the Trump administration began strategizing about how to add a citizenship question almost immediately after Trump took office — and, in the summer of 2017, worked directly with Hofeller to do so.

Mark Neuman, who was a member of the Trump transition team and a former adviser on census issues, provided information about his contacts with Hofeller during the time the administration was discussing how it could get the citizenship question on the census.

In August 2017, Neuman, then an adviser to Commerce Secretary Wilbur Ross, communicated directly with both Hofeller and his business partner, Dalton “Dale” Oldham, about how to best phrase the citizenship question. Neuman asked both men to review language in a letter Neuman was sending to request the addition of the question.

Neuman’s letter offered the unfounded rationale the DOJ would later use to justify the question — to ensure compliance with the Voting Rights Act — and he wanted to make sure Hofeller and Oldham thought the language was correct. Both Oldham and Hofeller agreed the language was fine.

At every turn, Hofeller sought to advantage Republicans by minimizing participation by voters of color and Democratic voters. He didn’t do this in the shadows. On the contrary, Hofeller was ubiquitous in his efforts to ensure Republican control at any cost. When he passed away in 2018, one obituary said he “may be more responsible for the Republican majority in Congress than any other single person in modern politics.”

Over the years, Republicans paid him millions of dollars for his services.

Hofeller helped draw a highly gerrymandered map in North Carolina. He was hired by the conservative Washington Free Beacon to assess whether it would advantage Republicans to draw political maps based on a subset of the population — American citizens of voting age — rather than a state’s total population. He worked as the redistricting director for the Republican National Committee.

Trying to rig the census was just a logical progression for Hofeller. In the Trump administration, he found a willing ear for his efforts. And now the House Oversight committee has proof the administration formed a partnership with Hofeller as well.

Published with permission of The American Independent.

IMAGE: Wilbur Ross departs Trump Tower after a meeting with Donald Trump in New York, November 29, 2016. REUTERS/Lucas Jackson

Pompeo Skirting Legality With ‘Official’ Trips To Kansas

It looks like Secretary of State Mike Pompeo may be violating the Hatch Act.

Sen. Bob Menendez (D-NJ), the top-ranking Democrat on the Senate Foreign Relations Committee, asked the Office of Special Counsel to look into whether Pompeo’s repeated trips to Kansas violate the act.

The Hatch Act bars executive branch employees from using government resources for partisan purposes, such as campaigning while on the clock. But it appears Pompeo may be doing just that.

Since March of this year, Pompeo has made three trips to his home state of Kansas. That might not be unusual, but these were framed as official trips, not Pompeo just visiting. Combine this with the fact that Pompeo may very well be considering a Senate run back home — he’s already got the backing of prominent Republicans like Senate Leader Mitch McConnell — and it looks a lot like those trips home are to promote Mike Pompeo, not the interests of the United States.

Menendez’s letter to the OSC shows Pompeo’s most recent trip looked an awful lot like a campaign stop, or at least like someone exploring a run for office. He participated in a workforce development roundtable, met with students at Wichita State, and visited a private aerospace company.

Menendez’s letter also reminded the OSC of its own opinion that specifically found that “any action that can reasonably be construed as evidence that an individual is seeking support for or undertaking an initial ‘campaign’ to secure a nomination or election to office” counts as a candidacy under the Hatch Act. In other words, even if this is just Pompeo exploring his options, doing it on taxpayers’ dime, and time, likely runs afoul of the law.

As secretary of state, Pompeo’s duties are focused outside the United States, not within it. He should be racking up international miles. Hillary Clinton flew nearly a million miles and visited 112 countries during her tenure as secretary of atate, as did John Kerry during his. Instead, he seems to be exploring a Senate run at the behest of Republicans who don’t want former Kansas Secretary of State Kris Kobach to run, as it looks like Kobach would almost certainly lose.

Though this time Pompeo’s travel is for his own political benefit, it’s not the first time that his domestic travel has been scrutinized. In March of this year, Citizens for Responsibility and Ethics in Washington (CREW) called for an investigation into Pompeo’s frequent trips to 2020 battleground states such as Iowa, Kansas, and Texas. CREW said Pompeo’s insistence he wasn’t traveling to those states to bolster Trump’s reelection prospects rang hollow.

If Pompeo did indeed violate the Hatch Act, he’s got a lot of company in this administration. Just look at counselor to the president Kellyanne Conway, who has violated the Hatch Act at least 50 times on Twitter alone. Or HUD official Lynne Patton, who used her official government Twitter account for political tweets. Given that neither Conway or Patton have suffered any real consequences for their behavior, don’t expect Pompeo to be scared by the idea he might be guilty of violating the law.

Published with permission of The American Independent.

Indicted Giuliani Associate Parnas May Claim ‘Executive Privilege’

In a move that is as brazen as it is odd, Lev Parnas — one of Rudy Giuliani’s two associates arrested earlier this month — has raised the possibility the White House could invoke executive privilege in his case.

This is in spite of the fact that Donald Trump has said he doesn’t know Parnas or his codefendant, Igor Fruman.

Parnas’ attorney, Edward MacMahon Jr., told the judge overseeing the case that the White House might invoke the privilege over some of the evidence gathered because Parnas was using Giuliani as a lawyer at the same time Trump was.

For Trump to invoke the privilege in this instance would seem to stretch the idea to the breaking point. Executive privilege is generally described as “the right of the president and high-level executive branch officers to withhold information from Congress, the courts and ultimately the public” concerning some national security needs and when it is in the public interest to protect the privacy of White House deliberations.

The idea behind the privilege is that the executive branch needs to be able to discuss crucial matters with some level of confidentiality about those deliberations. It’s difficult to see how that could be extended to anyone who happens to have the same lawyer as the president.

That is unless Trump and Giuliani were indeed working hand-in-hand with Parnas on Trump’s Ukraine scheme. Given that pictures have surfaced showing Parnas being photographed with Trump, posing with Ivana Trump, and attending events with Giuliani all around the country, that may very well be true.

In a normal presidency, it would be highly unusual for the White House to say that privilege should stretch to cover any illegal acts allegedly committed by Parnas, who is charged with using straw donors to funnel money into U.S. elections and pressuring politicians to remove the ambassador to Ukraine. However, Trump made a blanket assertion of executive privilege for everything related to the Mueller report, used it to stop Congress from getting material about his census citizenship question, and barred former White House counsel Don McGahn from talking to Congress. He seems quite comfortable stretching privilege well past what logic would dictate.

Prosecutors haven’t said they agree with the possibility that privilege could be invoked. Still, the government is already using a “filter team” to review whether any material should be kept from prosecutors because of attorney-client privilege. Now, we just have to wait and see whether Parnas has damning enough information or documents that Trump will step in and deploy executive privilege.

Published with permission of The American Independent.