by tyler | Sep 5, 2023 | CNN, politics
A federal appeals panel on Tuesday declined to issue a broad order blocking special counsel Jack Smith’s team from accessing data from Pennsylvania Rep. Scott Perry’s cell phone that was seized by the FBI, and sent the case back to a lower court for further litigation over what material investigators can examine.
Federal investigators seized Perry’s phone in August 2022 while investigating the efforts by former President Donald Trump and his Republican allies to overturn the 2020 election. However, Smith’s team hasn’t yet examined the material, which was set aside while Perry’s legal challenges play out.
Perry asked the DC Circuit Court of appeals to block the Justice Department from accessing his cell phone. Instead of granting that request, the appeals panel sent the case back to a lower court to “apply the correct standard” and determine which of Perry’s communications can be examined.
The lower court was ordered to weigh Perry’s privilege arguments and determine if investigators can examine his communications with “individuals outside the federal government, communications with members of the Executive Branch, and communications with other Members of Congress regarding alleged election fraud,” according to a docket entry made public Tuesday.
The full opinion from the appeals panel wasn’t made public, so it’s not clear what standard the judges want to see applied to Perry’s texts. (Most of the litigation in the case is under seal.)
However, it appears that Tuesday’s ruling somewhat narrowed the ability of investigators to scrutinize Perry’s phone, while still allowing them to continue their efforts to access the material.
Special counsel investigators are seeking access to more than 2,200 records of communication between Perry and the Trump White House and others, according to previous court filings.
Perry was connected to Trump’s attempts to weaponize the Justice Department to help him overturn his 2020 election defeat, seeking to install a sympathetic acting attorney general and sending letters to battleground states falsely claiming that there had been widespread voter fraud.
The decision on Tuesday was unanimous and came from three GOP-appointed judges. Their ruling is under seal, though it could be made public in the future if there aren’t any objections from the Justice Department or Perry’s lawyers, according to a court filing.
Even after Smith indicted Trump in connection with the January 6 probe, his investigation is still ongoing. In addition to Smith’s continued pursuit of Perry’s phone data, CNN reported earlier Tuesday that Smith’s team recently asked witnesses about attempts by Trump supporters to breach voting machines in key states, and about fundraising efforts based on false claims of voter fraud.
The dispute over Perry’s phone data dates back to before Smith took over the sprawling federal criminal probe.
The seized cell phone of Perry contained 930 records in which the Pennsylvania Republican often tried to cajole executive branch officials around the 2020 presidential election, according to the court record. He had been in touch with Trump and powerful Trump backers, including former White House chief of staff Mark Meadows, Justice Department official Jeffrey Clark and others who pushed false claims of election fraud. (The special counsel hasn’t been able to see all of those exchanges because of Perry’s pending appeal.)
Perry’s communications with executive branch officials were “proactive, persistent and protracted,” Judge Beryl Howell of the trial-level court wrote previously when she ruled in favor of letting investigators examine the material.
Perry, Meadows and Clark haven’t been charged with federal crimes.
Clark was named as an unindicted co-conspirator in Trump’s federal election subversion indictment. He and Meadows are also facing state criminal charges in Georgia related to the 2020 election, and have pleaded not guilty.
The key issue in Perry’s legal challenge is whether the Constitution’s so-called Speech or Debate Clause – which says legislators cannot be questioned on “any Speech or Debate” in Congress – applies to a lawmaker’s informal efforts to take the temperature on an issue headed for a vote, when that approach that was not formally authorized by Congress.
Howell had called Perry’s arguments for secrecy ones that would “truly cloak Members of Congress with a powerful dual non-disclosure and immunity shield for virtually any of their activities that could be deemed information gathering about any matter which might engage legislative attention.”
by tyler | Sep 5, 2023 | CNN, politics
Republican Sen. Tommy Tuberville’s monthslong standoff that has blocked military promotions over the Pentagon’s abortion care policy is “putting our national security at risk,” three of the nation’s senior-most military officials are warning in a Washington Post op-ed that published Monday night.
The op-ed, authored by Navy Secretary Carlos Del Toro, Army Secretary Christine Wormuth and Air Force Secretary Frank Kendall, is an unusual public intervention in a congressional political dispute and reflects the frustration felt at the highest levels of the US military over Tuberville’s holds, which have been in place for six months.
“Senators have many legislative and oversight tools to show their opposition to a specific policy. They are free to introduce legislation, gather support for that legislation and pass it. But placing a blanket hold on all general and flag officer nominees, who as apolitical officials have traditionally been exempt from the hold process, is unfair to these military leaders and their families. And it is putting our national security at risk,” the leaders write.
Tuberville, of Alabama, has delayed the confirmations of more than 300 top military nominees over his opposition to the Pentagon’s policy of reimbursing service members and their families who have to travel to receive abortion care. In the Senate, one senator can hold up nominations or legislation, and Tuberville’s stance has left three military services to operate without a Senate-confirmed leader for the first time in history.
It’s possible to confirm each of the nominees one by one, but Senate Democrats have argued that would take up valuable floor time – despite a five-week recess taken in August. The Senate is reconvening on Tuesday.
Without the replacements, the “foundation of America’s enduring military advantage is being actively eroded” by Tuberville, and the holds also have “a domino effect upending the lives of our more junior officers, too,” the leaders write.
“We know officers who have incurred significant unforeseen expenses and are facing genuine financial stress because they have had to relocate their families or unexpectedly maintain two residences,” they write. “Military spouses who have worked to build careers of their own are unable to look for jobs because they don’t know when or if they will move. Children haven’t known where they will go to school, which is particularly hard given how frequently military children change schools already.”
The op-ed concludes, “We believe that the vast majority of senators and of Americans across the political spectrum recognize the stakes of this moment and the dangers of politicizing our military leaders. It is time to lift this dangerous hold and confirm our senior military leaders.”
CNN has reached out to Tuberville’s office for comment. In July, Tuberville posted on X, “I didn’t start this. The Biden admin injected politics in the military and imposed an unlawful abortion policy on American taxpayers. I am trying to get politics out of the military.”
Tuberville says the Pentagon is violating law with the reproductive health policies that include, among other things, a travel allowance for troops and their families who must travel to receive an abortion because of the state laws where they are stationed. Pentagon officials have pointed to a Justice Department memo that says the policies are lawful.
The holds first began in March and Tuberville has held his ground despite mounting public pressure.
Active-duty military spouses hand-delivered a petition to Senate Majority Leader Chuck Schumer, Minority Leader Mitch McConnell and Tuberville in July signed by hundreds of military family members who were “deeply concerned and personally impacted by Senator Tuberville blocking confirmation of senior military leaders.”
By the end of this year, there will be more than 600 military officers up for nomination, including the nominee for Chairman of the Joint Chiefs of Staff, Air Force Gen. C.Q. Brown, who has been nominated by President Joe Biden to take over for Army Gen. Mark Milley.
Among other positions, the chief of naval operations, Army chief of staff and Marine Corps commandant are serving in acting capacities. In some cases, the officer filling the role on a temporary basis is lower-ranking than the officer who was nominated to take the position; the Missile Defense Agency, for example, is being led by a one-star in an acting capacity despite the position typically being filled by a three-star general.
by tyler | Sep 5, 2023 | CNN, politics
The impeachment trial of Ken Paxton, the Texas attorney general who faces accusations of repeatedly abusing his office to help a donor, is set to begin Tuesday in the state Senate.
Paxton, a firebrand conservative Republican who has aligned himself with former President Donald Trump and played a central role in steering the state rightward in recent years, has been suspended from his duties since the GOP-led House impeached him in May.
Since taking office in 2015, Paxton has been beset by a series of scandals. He remains under indictment on securities fraud charges and faces an additional federal investigation after former staffers accused him of accepting bribes and abusing his office.
It was his request for $3.3 million in state funds for a settlement with those whistleblowers that prompted the state House GOP to impeach Paxton on a 121-23 vote, with two members voting “present.”
The Republican-controlled state Senate, though, is friendlier ground for the embattled attorney general. He has a number of conservative allies there – including Lt. Gov. Dan Patrick, who will preside over the trial. His wife, Angela Paxton, is a member of the Senate, though she has been barred from voting at the trial.
Here’s a look at who Paxton is, why he was impeached and how his trial will unfold:
Paxton is a longtime fixture in Texas politics, serving in the state House and Senate before his election as attorney general in 2014, and then reelection in 2018 and 2022.
Until his impeachment, he was best known for challenging Barack Obama’s executive orders and legislative achievements in court – including battles against Obamacare and the former president’s immigration orders.
In an effort to overturn the results of the 2020 election, he asked the US Supreme Court to invalidate the Electoral College votes of four swing states won by Joe Biden. The lawsuit was dismissed. Paxton then traveled to Washington to attend the “Stop the Steal” rally on January 6, 2021, where the attorney general told the crowd, which included people who would soon riot at the Capitol, “We will not quit fighting.”
Paxton has faced scandal for years. He was indicted by a grand jury in 2015 on securities fraud charges following allegations that he misled investors about his financial ties to a technology company while selling shares of that company. That case has still not gone to trial and has been delayed by years of disputes over where the trial should take place.
In 2020, top Paxton aides published a letter accusing the attorney general of abuse of office, bribery and improper influence – complaints centered on Paxton’s ties to donor and friend Nate Paul.
Four of the former staffers later sued the attorney general’s office, claiming they were fired in violation of the state’s whistleblower law. In February, Paxton agreed to a settlement in which he did not admit fault and the whistleblowers would be paid $3.3 million. He asked state lawmakers to fund that settlement.
The House impeachment managers have already submitted nearly 4,000 pages of evidence, unveiling more details in the extraordinary accusations that Paxton pressured his top aides to take steps that would benefit Paul, a real estate investor.
Paxton is accused of accepting $20,000 in countertop materials from Paul through a contractor during a remodeling of his home.
Also included in the allegations is that Paxton had a mistress, whom Paul hired as a favor to the attorney general, and that Paxton would use an alias – “Dave P” – on Uber to meet up with the mistress, as well as Paul.
Paul was arrested in June on eight federal felony charges related to falsifying financial records, and his lawyer has repeatedly declined comment to CNN.
The Texas Senate’s impeachment trial begins Tuesday and is expected to last two or three weeks. Patrick, the lieutenant governor and a Paxton ally, will preside, serving in a judge-like role.
Tuesday morning, the Senate clerk will read the state House’s 20 articles of impeachment one by one and ask Paxton or his lawyer to plead on each. Paxton can either appear in person or by counsel. He can plead guilty or not guilty.
After the reading of the articles and Paxton’s pleas, the House impeachment managers and their legal team will have 60 minutes to make their opening statement, followed by Paxton’s team, also with 60 minutes.
Then the House managers will start presenting their case. Each side gets 24 hours to present evidence and witnesses, which could stretch out over days. Paxton’s lawyers have said the attorney general will not testify, though it’s possible House managers could compel him to take the stand via subpoena.
Each side will also get 60 minutes for closing arguments. Paxton’s side will close first, followed by the House impeachment managers.
At the end, senators will deliberate behind closed doors and will submit a written vote for each article.
A conviction requires 21 of the 30 eligible state senators to vote against Paxton. Assuming all 12 Democrats vote to convict him, nine of the 18 voting Republicans would also have to convict Paxton.
There are 31 members of the Senate. However, Paxton’s state senator wife, Angela, will not be allowed to vote or sit in on the closed-door deliberations. She has, however, been permitted to sit in as a member of the court.
Initially, Angela Paxton said she would not recuse herself, but the new Senate rules then banned her from voting. Allowing her to sit in on the trial, however, essentially helps her husband because the conviction threshold is 21, rather than 20 had she been removed altogether from the trial.
At any point, a majority of the Senate could vote to dismiss the charges, which would end the proceedings.
If the Senate votes to convict Paxton, he would be removed from office. But the Senate would have to hold another vote to permanently bar him from holding office.
That’s what happened in 1917, when Texas Gov. James “Pa” Ferguson was removed from office on embezzlement charges and barred from holding future office. His wife, Miriam “Ma” Ferguson, ran for governor in 1924, under the pledge that Texas would get “get two governors for the price of one.” She won – becoming the state’s first female governor – but lost in a primary two years later. She won a second two-year term in 1932.
The trial features some of the most legendary, big-personality trial lawyers from Houston.
The state House impeachment managers are represented by Rusty Hardin and Dick DeGuerin. Hardin has defended NFL quarterback Deshaun Watson against allegations of sexual misconduct, as well as Enron accounting firm Arthur Andersen and the deceased elderly husband of the late model Anna Nicole Smith. DeGuerin has also represented high-profile figures, including Tom DeLay, Robert Durst and David Koresh.
Paxton’s primary lawyer is Tony Buzbee, the attorney who represented the more than 20 women who had accused Watson of sexual misconduct. In 2021, Buzbee filed a lawsuit on behalf of more than 100 people who died or were injured during the Travis Scott concert at Astroworld. Buzbee ran for Houston mayor in 2021 and is a candidate for the city council this fall.
Paxton is also represented by Dan Cogdell. The high-profile defense lawyer has already worked with Paxton on the pending securities fraud case. He also represented executives in the Enron financial scandal.
Paxton has described his impeachment as a “politically motivated sham” and has consistently denied wrongdoing.
The Texas Tribune reported that at a Collin County GOP picnic Saturday, Paxton criticized Texas House GOP leadership.
“Let’s clean house,” he said.
Paxton has long aligned himself with the most conservative, hard-line forces in the GOP – and many of those forces have backed him. Trump has supported him, lambasting the Republicans who impeached him as “RINOS,” or Republicans in name only, and calling his impeachment “election interference.”
This story has been updated with additional information.
by tyler | Sep 5, 2023 | CNN, politics
Former White House trade adviser Peter Navarro goes on trial Tuesday as the second ex-aide to former President Donald Trump to be prosecuted for criminal contempt of Congress.
Navarro, like Trump ally Steve Bannon, faces charges over his lack of cooperation with subpoenas issued by the now-defunct House select committee that investigated the January 6, 2021, US Capitol attack. Jury selection began Tuesday morning.
Bannon was convicted last summer on two counts of criminal contempt in a case he’s appealing to the Washington, DC, US Circuit Court of Appeals.
While the House committee investigation ended in early January, convictions in the criminal cases arising from the defiance of its subpoenas stand to be a powerful cudgel for congressional investigators in the future who are dealing with recalcitrant witnesses. It may also help draw clearer lines around a former president’s power to assert privilege over aides facing demands from Congress for testimony and documents.
Navarro is facing two counts of contempt stemming from his lack of compliance with the congressional subpoena’s request for both documents and testimony that carry a minimum of one month in prison. He has pleaded not guilty.
Already, the case has prompted a federal judge to issue a significant ruling on what role claims of privilege should play in the prosecution of an ex-presidential aide for contempt of Congress.
US District Judge Amit Mehta, who will be presiding over the trial, concluded last week that Navarro had not put forward enough evidence establishing that Trump had formally invoked privilege or immunity in response to the subpoena, having previously described Navarro’s arguments as “pretty weak sauce.”
Navarro has already previewed the possibility that, if convicted, he’d ask for higher courts weigh in on the legal questions about privilege and congressional subpoena authority that his case presents.
“These are questions that will certainly move up the chains – the appellate level. And as I said at the beginning, this is probably going to the Supreme Court because this is so important,” Navarro told reporters last week. “You can’t have a Congress, a partisan Congress, that abuses the subpoena process for the purpose of punishing the party that’s out of power.”
The Justice Department, which is often in the position of defending an expansive view of presidential privilege, has walked a fine line, as it has sought to square positions it’s taken on immunity for presidential aides in the past with the distinct details of Navarro’s case.
Navarro, brought into the Trump White House to advise on trade, was a prominent face in the administration who earned a reputation for clashing with other top Trump officials behind the scenes. He reportedly came into the Trump orbit during the 2016 campaign after Jared Kushner encountered a book he had written expressing his hard line views on China.
The Trump administration also put Navarro front and center in its response to the Covid-19 pandemic. He spearheaded the effort to streamline the medical supply chain, while also defending Trump’s views on controversial Covid treatments – specifically the drug hydroxychloroquine – that were well outside the medical mainstream.
Navarro’s time in the White House is a source of continuing legal troubles for the former trade adviser, troubles that are not limited to the criminal case.
He is currently facing a civil lawsuit brought by the Justice Department alleging he violated the Presidential Records Act by not turning over to the National Archives emails, said to be government records, on his personal email account. He has appealed the ruling against him in that case.
Navarro’s criminal trial will likely be a “short” one, Mehta said at a pretrial conference last week, and prosecutors have predicted that their case in chief will take no longer than a day.
Jury selection will begin Tuesday morning. Depending on how long that process takes, one or both sides could give their opening statements by the end of the day.
With the judge finding that Trump did not make a formal invocation of privilege, Navarro will be severely limited in the defenses he can put in front of the jury. Prosecutors have argued that the jury need only to find that his failure to comply with the subpoenas was deliberate and intentional.
When the House committee subpoenaed Navarro last year, it pointed to the account in Navarro’s post-White House memoir about the effort to overturn Trump’s electoral loss and other public remarks he made about the plans aimed at the 2020 results. Navarro turned over no documents, nor did he show up to sit for the demanded testimony.
Prosecutors are expected to put on the stand a handful of lawyers who worked for the former committee, who are likely to testify about the panel’s protocols and their interactions with Navarro over the subpoenas.
Navarro’s trial is taking place several months behind schedule, after the judge concluded in January shortly before the original trial date that he needed to give more consideration to Navarro’s claim that Trump asserted privilege that prevented his compliance with the subpoena and whether a jury could consider evidence of such a claim. After months of legal briefings, that consideration came to a head last week with a hearing on what evidence Navarro had to prove a formal assertion of privilege or testimonial immunity had been made.
During the nearly three-hour hearing last Monday, Navarro testified that Trump made it known to him that he didn’t want his former aide to cooperate with the House select committee. He said there was “no question … none,” that Trump had invoked privilege in the matter.
Mehta concluding that Navarro had not carried his burden in proving that Trump had formally asserted a privilege or a testimonial immunity that would have allowed his former aide to not even appear to answer the committee’s questions. Mehta described Navarro’s testimony of a February 20, 2022, call with Trump, where Trump supposedly confirmed that privilege had been asserted, as “nondescript” and lacking in detail.
In handing down his ruling, the judge weighed in on what he described as an “open” legal question: whether a president – or someone authorized to assert privilege on a president’s behalf – needed to personally assert the privilege for that assertion to be valid. Mehta concluded that such a personal assertion was necessary.
“The privilege cannot be validly asserted by mere acquiescence,” Mehta said.
Navarro, if convicted, could tee up the privilege issue as one higher courts should review. Bannon has an appeal underway of his conviction that is focused on how he was not allowed to put forward as a defense at trial the advice of counsel he received before not complying with a subpoena from the House January 6 committee.
Prosecutions of ex-presidential aides for their lack of compliance with congressional probes have been a rare endeavor for the Justice Department. It declined to prosecute former Trump White House officials Mark Meadows and Dan Scavino, who were also subpoenaed by the committee and referred by the House to the Justice Department for contempt. Their dealings with the committee differed from Navarro’s and Bannon’s in crucial ways, with Meadows producing hundreds of documents before withdrawing his cooperation with the probe.
The costs of even fighting such criminal cases – let alone serving the punishment of a conviction – will likely weigh on future witnesses when confronting congressional subpoenas with which they are not otherwise inclined to comply.
Navarro told reporters outside the courthouse last week that his legal bills, including appeals of the case, would exceed $1 million.
“Do I look like a rich man? This is the same suit I wore in 2017 going into the White House,” he said.
by tyler | Sep 5, 2023 | CNN, politics
First lady Jill Biden tested positive for Covid-19 on Monday and is experiencing “mild symptoms,” the White House said. President Joe Biden has tested negative.
The diagnosis has upended the first lady’s plans to begin teaching the fall semester at Northern Virginia Community College on Tuesday. She is working with the school to “ensure her classes are covered by a substitute,” Vanessa Valdivia, the first lady’s spokesperson, said.
Dr. Biden, 72, who remains at the family’s home in Rehoboth Beach, Delaware, typically teaches on Tuesday and Thursdays.
Biden will be “monitored by the White House medical team” after her diagnosis and follow the team’s advice about when to return the White House, Valdivia said. In addition to starting school on Tuesday, Biden was supposed to speak in the evening in Fort Belvoir, Virginia, at a send-off dinner for the US team competing in the Invictus Games in Düsseldorf, Germany next week, but now she will not participate, Valdivia said.
An administration official told CNN Monday that there are no changes to White House Covid protocols or to the president’s schedule at this time.
The diagnosis of the first lady comes amid a busy week for Joe Biden, who delivered a Labor Day speech in Philadelphia earlier in the day. The president is scheduled to present the Medal of Honor to an Army captain in a White House ceremony Tuesday before departing for the G20 Summit in India on Thursday.
CNN has asked for more details on both the president and first lady’s regular Covid testing cadence and if Joe Biden was with his wife when she began exhibiting Covid symptoms.
Last summer, the first lady tested positive for Covid-19 while vacationing in South Carolina in August. President Biden tested positive last July. Both experienced rebound cases shortly after being treated with Paxlovid.
White House press secretary Karine Jean-Pierre told reporters in July in the White House briefing room that anyone who meets with the president is still tested for Covid-19 before their meeting after members of Israeli President Isaac Herzog’s delegation tested positive ahead of a bilateral meeting.
“We have testing protocols when – anytime somebody meets with the president,” Jean-Pierre said at the time. “So, I can tell you that anybody who meets with the president does indeed get tested. I do. We all do.”
Jill Biden’s diagnosis comes amid renewed attention to Covid-19 as the world approaches the fourth virus season since the coronavirus arrived on the scene.
US Centers for Disease Control and Prevention data from earlier in the summer showed a slight increase in hospital admissions, emergency department visits, and positive Covid-19 tests – although not nearly as high as in past summers.
Overall, there were about four new hospital admissions for every 100,000 people nationwide in the week ending August 19, which is considered low, according to CDC thresholds. Seven counties had high levels of Covid-19 hospitalizations. But 117 counties — about 3.6% of the country — were in the medium threshold. About a quarter of those counties were in Florida.
A new variant, BA.2.86, has captured scientists’ attention because it’s highly mutated, but so far it’s only been detected in a small number of people globally. Nonetheless, “it doesn’t look good … in terms of the virus’ nonstop evolution,” Dr. Eric Topol, a cardiologist at the Scripps Research Translational Institute, said. The virus “keeps finding new ways to challenge humans, to find new hosts and repeat hosts, and it’s relentless.”
This story has been updated with additional information.
by tyler | Sep 5, 2023 | CNN, politics
President Joe Biden is nominating former US Treasury Secretary Jack Lew as his ambassador to Israel at a fraught moment in US-Israel ties.
Lew, who also served as chief of staff during the Obama administration, will likely face a tough confirmation battle as Republicans seek to challenge Biden’s policies toward Israel.
Tensions between Biden and Prime Minister Benjamin Netanyahu’s right-wing government have persisted for months, in part over contentious judicial reforms and what Biden regards as extremist positions taken by members of Netanyahu’s government. Israel’s moves to expand settlements in the occupied West Bank have also drawn US criticism.
Biden and Netanyahu are expected to meet sometime this fall in the United States after a prolonged period without face-to-face talks. The two men have known each other for decades.
Even amid the tensions, Biden is looking to secure a normalization agreement between Israel and Saudi Arabia in the hopes of bringing more stability to the Middle East.
Lew, who has been working in private equity in recent years, declined to comment. He would replace Tom Nides as US ambassador to Israel. Nides, who is married to Virginia Moseley, the executive vice president of editorial for CNN US, departed the post earlier this summer.
Aside from his posts at the White House and Treasury, Lew served as deputy secretary of state for management and resources, and as the director of the Office of Management and Budget. He practices Orthodox Judaism and is 68 years old.
CORRECTION: This story has been updated to correct Jack Lew’s age. He is 68.
