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Author and legal scholar Elie Mystals first book argues that the U.S. Constitution and Bill of Rights are deeply flawed, but that its still possible to use them to protect the rights of women and people of color.

President Joe Bidens recent nomination of Judge Kentanji Brown Jackson to the U.S. Supreme Court is unprecedented. There has never before been a Black woman nominated to the nations highest courta court that is the final arbiter of how the Constitution, the Bill of Rights, and the laws of the nation are applied. Yet Bidens nomination is likely to make little difference in the larger balance of power on the court, given that the opinions of the six Conservative justices will still overwhelm the decisions of the three more Liberal justices.

In his newly released first book, Allow Me to Retort: A Black Guys Guide to the Constitution, legal scholar Elie Mystal, justice correspondent for The Nation, argues that the founders wrote the original Constitution narrowly and with such haste that they were forced to add on the Bill of Rights to remedy its gaping holes, rather like a day-one patch to a piece of prematurely released software.

It is precisely for this reason that the resultant legal framework needs constant updating in order to ensure full equality for all. The law is not science; its jazz, writes Mystal. Its a series of iterations based off a few consistent beats.

With his signature razor-sharp wit and pithy prose, the legal scholar argues that Conservatives have so often successfully challenged the full application of equal rights because their opposition is covered in jargon and discussed as if only an expensively educated lawyer could truly understand the nuance.

But, its like building a bike, writes Mystal, who promises to show how conservatives are building their white supremacist ride, and how liberals can throw a spanner in the works.

Mystal spoke with YES! Racial Justice Editor Sonali Kolhatkar about his new book.

This interview has been edited for clarity and length.

Kolhatkar: Why did you decide to take on the U.S. Constitution and the Bill of Rights as the subject matter of your first book?

Mystal: The main reason is that we have been told a lot by Conservative White people what the Constitution means, what the law means, how it should be interpreted and why. And that, from my perspective, is just one option among many. The other options involve looking at the Constitution as a flawed document that needs to be perfected in order to achieve a level of fundamental fairness and equality that was, shall we say, missing from the initial draft of it, [a draft that was] written by slavers, colonists, and people willing to make deals with slavers and colonists.

So, I bring a perspective that is informed by the fact that [according to] the Constitution I wasnt a person. And from that starting point, I look at that document a little bit differently.

Its not a sacred text to meits a flawed piece of political philosophy. And I think that perspective is valuable, especially in a moment that Conservatives are ascendant, and their views and their ideology of the Constitution is ascendant. I think its good to have a counterargument for what theyre trying to do.

Kolhatkar: You point out that Republicans and Conservatives treat the Constitution as if it was set in stone, a sacred document, and yet immediately after it was written, it required amendments. Just that fact itself should hint that this was a deeply flawed process, right?

Mystal: These were amendments that, remember, the people who wrote the Constitution didnt think were necessary. They forced James Madison to write the Bill of Rights. Madison wrote The Federalist Papers with Alexander Hamilton and John Jay, arguing that the Constitution was fine as is and didnt need updates or amendments for the Bill of Rights. Nothing shows you that the Constitution was a bit of a rushed work in progress than the day-one patch that is the Bill of Rights.

But I think it goes beyond that. One of the things that Conservatives like to hide behind is the amendment process, saying, Oh, if theres something wrong here, then we need a new amendment to fix it, not a new interpretation of the Constitution.

Theres a lot of things that the Constitution doesnt protect when it comes to the issue of womens rights, because the Constitution did not treat women as full people.

I reject that for many reasons. One of the principal ones is that the Constitution doesnt include fairness for all of us. And if youre a Conservative, youre saying that the way to fix that is with a new amendment to the Constitution. How is that the answer to fundamental unfairness? How about we just have fairness? How about we just have equality? We already have amendments that say equal protection under the law shall not be denied, due process of laws should not be denied. Why cant we use those amendments weve already passed? Why do you want to make me pass another amendment, Mr. Conservative?

And the answer, of course, is that Conservatives dont believe we should have fundamental fairness and equality in our laws and in our government. They like things the way they are. Thats why they dont actually want amendments to happen, because they think that this racist country is working as intended. I think its not.

Kolhatkar: You point out that even though the Constitution and Bill of Rights are flawed documents, they do contain pretty decent arguments, and you want the spirit of those rights to be respected. How do Republicans use legal arguments to justify racism, sexism, homophobia, and the like in spite of this?

Mystal: One of the reasons why Ive written this book is because Republicans seem to be so good at making these sorts of heavy legal jargon-laden arguments to the general public, and a lot of people who know Conservatives are wrong dont know how to fight them. And you shouldnt have to go to law school for three years and study this stuff every day in order to fight Conservatives really bad arguments. So, part of the book is just giving you the arguments that you can make against the Conservatives in your life, whether you see them online or at Thanksgiving dinner. I would hope that this book is useful for those who fight people who believe that rights only exist for White, cis-hetero males.

In terms of how they do it, there are lots of ways that I can point out. One good way is to see what Conservatives say about reproductive rights. Theyll tell you that the Constitution does not explicitly defend a womans right to choose. Thats true, theres nothing in the Constitution that says the right to an abortion shall not be infringed upon.

Do you want to know why the Constitution doesnt explicitly protect a womans right to choose? Because the Constitution did not explicitly protect a womans right to talk, or to own property, or to not be raped. Theres a lot of things that the Constitution doesnt protect when it comes to the issue of womens rights, because the Constitution did not treat women as full people.

Kolhatkar: And women were not involved in the writing of the Constitution.

Mystal: Not only were women not involved in the writing of the original Constitution, they also havent been involved in the writing of any of the amendments since then, including the amendment that gave women the right to vote!

Women were not writing the 19th Amendment, nor did women control any state legislature that had to ratify the 19th Amendment. And women have never held a majority of seats on the Supreme Courtalthough we might be getting close to that one day. So, at no point in American history has a body comprised of a majority of women been involved in adjudicating the rights of women, which is kind of weird when you think about it. The same goes for LGBTQ communities. The same goes for racial, ethnic, and religious minorities in this country.

Again, I come back to this point that if youre going to tell me that this document is legitimate at allwhich we can have a whole different debate aboutthen certainly it must evolve, it must breathe, it must live in a world where we understand the rights and responsibilities in this country a little bit more expansively than the exclusively White cis-hetero men that have been allowed to adjudicate those rights for most of our history.

Kolhatkar: Lets talk about the First Amendmentthis is a favorite one for Conservatives, and in recent times is most commonly invoked in terms of cancel culture. Conservatives love to talk about how Liberals and Leftists just want to cancel everybody and everything, but what does the First Amendment actually protect?

Mystal: The First Amendment protects, fundamentally, political speech. It protects, fundamentally, the freedom of the press. The people who wrote the First Amendment were fundamentally concerned with being able to talk smack to the government without catching a bullet. They wanted you to be able to say George Washington is a poopy-head without ending up in the brig. That was the goal of the First Amendment.

It is not attached to private speech or concerned about private speech. And, quite frankly, it would be ridiculous for it to be concerned about private speech. Why should the Constitution take judicial notice if a private company cares what you happen to say in the public square? Why would that work? So, the First Amendment somewhat clearly doesnt deal with private speech, nor should it deal with private speech.

And thus, when Conservatives claim theyre being canceled, what theyre really complaining about is having private people enact consequences because they said something stupid.

Nobodys canceling J.K. Rowling. I just dont feel like buying the books of an out transphobe. Thats all. Thats a private decision, nothing bad is happening to her. I just dont want to buy her dumb books now.

When we talk about Donald Trump being canceled, the man was president of the United States, and can stomp around Florida freely, apparently, despite his many crimes. No ones canceling him. He got kicked off of a private web platform, a bird app, thats what happened to Donald Trump. It is totally within the purview of that private company to say you can or cannot use our service.

Now, if youre talking about the government chilling speech, thats a whole different problem. When the Department of Justice chills speech, as [former Attorney General] Bill Barr did when they cleared the square in Washington, D.C., of protesters so Trump could have a photo op with a Biblethat is an issue of free speech that the founders would care about. Thats where the Constitution gets involved: when the government is chilling peaceful protest, and not before.

Kolhatkar: Lets talk about police brutality. This is also something that Conservatives like to couch in legal jargon to continue justifying the use of lethal force by police on ordinary people. You started out one of your chapters in your book Allow Me to Retort asking the question, Why cant I punch a cop? Take us through that argument.

Mystal: Imagine this situation: Im sitting in my house, eating some ice cream. Somebody kicks down my door and comes at me with a gun. Why cant I defend myself?

If thats a private citizen doing that, I would have the right to self-defense. In fact, Conservatives more than anybody would say that I have the right to pull out a gun and stand my ground and [invoke the] Castle doctrine, etc. The Conservativesallegedlywould have my back if someone kicks down my door, unless its a cop.

If its a cop, Im supposed to, what, die? Im supposed to just genuflect and take it, and hope that that cop who is assaulting me, who has broken into my home, does the right thing? How is that reasonable?

Well, the only way its reasonable for me to not be able to defend myself against a cop trying to kill me is if [I] live in [a] society where the other cops are going to stop him. The rule of law, if it is to mean anything, must mean that it applies to those who are being lawless even under the cover of law. The reason why I cant punch a cop is because other cops are supposed to punch him and stop him from violating my rights, stop him from brutalizing me.

The fact that we dont have that system and dont live in that world is the actual problem. Thats the problem that we have to fix. And until we get a majority of White people willing to fix it, its going to continue to be a problem.

When I say a majority of White people, people get angry with me sometimes. The reason why I say that a majority of White people want police to be brutal is because whenever we have a vote, a majority of White people vote for Republicans who then support police brutality.

The last time a Democrat running for president won the White vote was before the passage of the Civil Rights Act in 1964. In every presidential election since then, a majority of White folks have voted for the Republican, who has almost universally been a fan of aggressive policing and brutality.

In more recent times, a majority of White people, including a majority of White women, voted for Donald Trump, twice! He was only beaten the second time, over the objection of a majority of White folks. So, thats whats holding us back, from where I sit: Its that a majority of White people want their police to be brutal. And when given the option to vote for candidates who will stop that, they do not support them.

Kolhatkar: If this country was formed on the basis of White supremacy, how does the original Constitution and the Bill of Rights, and how do Republicans and Conservatives who interpret them, preserve that White supremacy?

Mystal: Every time we have a new amendment or a new law, Conservatives work to limit the effectiveness of that new law or amendment to preserve the old structures of White supremacy. They do this even when that law is meant specifically to take those structures down.

Now, I say Conservatives. Whether or not those Conservatives call themselves Democrats, as they did after the Civil War, or Republicans, as they do today, matters to me less. Whatever theyre calling themselves this morning matters to me less. What they are, are Conservatives. And wherever you look throughout history, it has been the Conservative Party, whatever they call themselves, that has worked to limit the effectiveness of justice, equality, and fairness.

You need look no further than the 15th Amendment saying that the right to vote shall not be abridged on account of race. Its a pretty simple idea. And immediately, Conservative legislatures in the South, in the former confederacy, just ignored it, just pretended that the 15th Amendment didnt even exist and went right back to excluding Black people from voting. The only change was that they couldnt overtly say because youre Black. They had to use slightly different words to achieve the same effect. But from the moment of the end of Reconstruction, when Rutherford B. Hayes pulled troops out of the South until the Civil Rights era, the South functionally ignored the 15th Amendment, and the courts let them do it. Conservatives on the courts refused to enforce the 15th Amendment against the White supremacists who were ignoring it.

Fast-forward to the civil rights movement, when we pass the Voting Rights Act of 1965which is my pick for the most important piece of legislation ever passed in American history. Its worked. Forty years after the civil rights movement, we end up with the first Black president.

The White Conservative response to that was to eviscerate the power of the Voting Rights Act in 2013. [Supreme Court Chief Justice] John Roberts did that in Shelby County v. Holder in 2013 by a 54 vote. He took away the pre-clearance [provision], which was the main thing stopping the former Confederacy from enacting new voter restrictions and suppression aimed at Black folks.

The voter suppression that was then unleashed helped Donald Trump get elected in 2016. And now, after this new census, we see that Republicans are off the chain with their voter suppression tactics. All of that can be traced back to John Roberts in 2013.

So, when you look at the history of the 15th Amendment, we have about 100 years when White people pretended that it didnt exist, about 2030 years in the middle there when it was kind of a thing, and now were on to one decade of White people pretending the 15th Amendment doesnt exist again. Well see how long this current eruption of racism lasts before somebody stops what John Roberts started.

Kolhatkar: You point out that your book is meant to be a handbook for arguments that laypeople can use against legal jargon justifying Conservative policies. But in practical terms, its the Supreme Court justices that interpret our Constitution and our Bill of Rights. And as you were just pointing out, that makes all the difference, and today, we have a situation with a 63 Conservative majority on the court. Isnt there an important argument to be made for expanding the court?

Mystal: Ah, so you got to the end of my book! I end the whole thing, as you know, with an argument for court expansion, because thats the only thing that will work. Thats the only thing that can stop Conservatives from having generational control over American law and policy. People need to understand that there is nothing that I can pass as a Democrat that a 63 court cannot strike down. There is nothing to stop them. The third branch of governmentthe courtshave a veto power over the other two. And until Democrats start understanding that and playing by those rules, and fighting for the third branch of government, we will always be behind.

This is where there are a lot of asymmetries involved, and this is one of the reasons why I decided to write this book. Because base Republican voters understand how important the Supreme Court is. They might not understand all the legal jargonIm not saying all the Republican voters are smarter than Democratic voters, or more civically aware than Democratic votersbut they know, because theyve been told by their leaders that if there is something that they want, they must control the Supreme Court to get it. So, if youre a Republican, you know that if you dont like gay people, well then, youve got to [control] the court.

Whereas if youre a Democrat, you dont seem to know that if you want anything to happen with climate change over the next 30 years, then youre going to need Liberals on the Supreme Court who will interpret the federal government having the authority to bring the fossil fuel industry to heel. You get nothing on climate if you dont control the Supreme Court. You get nothing on voting [rights] if you dont control the Supreme Court. You get nothing on guns if you dont control the Supreme Court.

Name me an issue you, Liberal, care about, and I will tell you exactly how the Supreme Court will take that away from you if you do not stack it with like-minded Liberals. And Democrats generally dont understand that. But Republicans do.

That is why we lose. That is why we fight an uphill, asymmetrical battle where Republicans have single-issue voters. You can go to a tabernacle in Utah and find some person whos like, Well, I dont really like Donald Trump but abortion so I have to vote Republican for the Supreme Court. You can find those people everywhere across the country in Republican pockets.

It is very hard to find single-issue Democratic Supreme Court voters, and, quite frankly, if we had more single-issue Democratic Supreme Court voters, Hillary Clinton probably would have won in 2016.

Kolhatkar: Where do you think that cycle can be broken into? In order to push Democrats, you need more people voting for Democrats, but the Supreme Court is curtailing voting rights. It feels like a vicious cycle, and where to break into it is an important question, right?

Mystal: Unfortunately, I kind of fear or worry that things are going to have to get worse before they get better. Republican policies are massively unpopular. One of the reasons why Republicans prefer to do certain things through the Supreme Court is that they cant actually get them done at the ballot box, because theyre unpopular. People support womens rights. People, now, support gay rights. Taking those away politically is difficult. Thats why they want the courts to do it.

So, my only hope is thatits a strange hope, hope is probably not the right word; my worry, perhapsis that when you have states like Texas taking away abortion rights and bullying trans kids, when things get bad enough, many people will say, Wait a minute, I dont want this country to be this way. Why does it gotta be this way? And maybe then theyll start understanding who their enemies have been this entire time and take the courts a little bit more seriously.

But it starts with Democrats taking the courts more seriously, right? Ill say this as my last thing: You cannot win the Republican nomination for president without being strong on the Supreme Court. If you think back to 2016, Donald Trump was running against all these establishment Republicans, and he was wiping the floor with them. But the one concession Trump had to make to the establishment Republicans was the Supreme Court. They had to give him that list, remember? It was a list of Federalist Society-approved Supreme Court justices, because without that list, he couldnt have won that nomination. Thats how important the Supreme Court is to Republicans.

Meanwhile, fast-forward to 2020, [when] 18,000 Democrats and their mothers are all running for the presidential primary. Joe Biden is one of the most anti-court-expansion candidates in the field, one of the most reluctant to reform the Supreme Court or aggressively change how it operates. And it doesnt cost him a vote in a primary. Thats the asymmetry. And until that asymmetry is corrected by base Democratic voters, the Democratic Party will continue to not elevate the courts to their rightful importance, and thus they will continue to lose the battle of the courts to Republicans.

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The U.S. Constitution Was Meant to Be a Work in Progress - YES! Magazine

An amendment to Wyomings appropriations bill would remove funding for gender studies at the University of Wyoming. (Paul Brady Photography / Shutterstock.com)

by John Coleman

An amendment that would remove funding for gender studies at the University of Wyoming has been adopted by the Wyoming Senate and is now before the House of Representatives for consideration. If enacted, Amendment 9 would impermissibly restrict a particular viewpoint, and FIRE strongly urges its removal from the states appropriations bill.

The amendment provides:

As a condition of these appropriations, the University of Wyoming shall not expend any general funds, federal funds or other funds under its control for any gender studies courses, academic programs, co-curricular programs or extracurricular programs.

Some have pointed out that because the language prohibits the institution from expending funds from any source to academic programs, not just gender studies programs, the language could be literally construed to close the institutionsacademic programming. However, even if that language is changed or narrowly interpreted, this amendment still poses constitutional concerns. By not funding and thereby shutting down courses, academic programs, co-curricular programs or extracurricular programs relating to gender studies, the amendment functions as a curricular ban on that topic, and would limit academic discussion of gender in any class, whether offered as part of a gender studies program or not.

It is flatly unconstitutional to prohibit events featuring speakers from the field of gender studies from receiving funding.

While local or state governments have broader leeway to regulate the curricula of K-12 classes, higher education is different and efforts to regulate viewpoints on university campuses are subject to more stringent review under the First Amendment. Proposals to ban particular studies because of their viewpoint are exactly the type of legislative imposition of the pall of orthodoxy over higher education that the Supreme Court has condemned part of the over 65 years of precedent that unequivocally holds that curricular bans in higher education are unconstitutional.

Targeting gender studies for elimination because of the points of view expressed by some faculty or courses in that field is unconstitutional. According to the Senate floor debate, that is exactly the intention of this amendment.

The amendment also targets funding for extracurricular programs. This implicates additional student activities and organizations, including those organized by students or funded by the student government. It is flatly unconstitutional to prohibit student events featuring speakers from the field of gender studies (however construed under this undefined provision) from receiving funding. A funding ban of this breadth prohibits student activity fee dollars from supporting events with speakers associated with gender studies. In Rosenberger v. Rector and Visitors of the University of Virginia, the Supreme Court made clear that denying funding to student organizations on the basis of viewpoint is unconstitutional. As the Court wrote, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nations intellectual life, its college and university campuses.

It is flatly unconstitutional to prohibit events featuring speakers from the field of gender studies from receiving funding.

This afternoon, FIRE wrote to members of the Wyoming House of Representatives urging them to remove the language of Amendment 9 from the appropriations bill. Hopefully, the Representatives will agree and delete the problematic provision.

View post:
FIRE urges Wyoming's House of Representatives to remove budget amendment defunding gender studies - Foundation for Individual Rights in Education

When the Polk County Commission met for itspublic agenda review workshop on Feb. 25, there weren't enough seats in the small, crowded conference room to accommodate the public.

In a set-up that continues to troubleopen government advocates, some attendees were forced to standthroughout a portion of the meeting while others gathered in an adjacent lobby where they couldn't see or hear presentations and discussions about wastewater management,expensive road projects, legal settlements, abacklog of pendingbuilding permitsand more.

A day earlier at a commission retreat, Polk County Commissioner Neil Combee pushed to move these twice monthly meetings to the commission boardroomwhere they would be more accessible to the public.

Not only would this venue accommodate more people it seats 175 but these meetings where government business is conductedcould be video recorded, streamed on the county's Facebook page and posted on the county website for the public to watch like every other public county meeting, Combee noted.

Previously: Polk County Commission holds public meetings behind a locked door

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Disappearing spaces: Polk's land conservation program expired in 2015. One group wants it back on the ballot

But Combeefailed to get support from the majority of his peers to move the meeting.

"I could care less," Commissioner Bill Braswell said.

Commissioner Rick Wilson said those meetings where commissioners have discussedongoing trash collection problems, COVID treatment options, recycling, fire rescue challenges, how tax dollars are used,and state and federal legislative priorities aren't designedfor the public.

"The agenda briefings were designed for us," Wilson said. "It's for us to get knowledge of what's going on so...when we get intothe board meeting we can be up on the issue. Then it's public. I say we keep those (agenda review meetings) where they're at."

The county has budgeted$692,925 in this fiscal year to provide its24-hour cable channel called PGTV.

That video technology is set up in the commission boardroom which recently underwent a $338,334renovation not the cramped confines of the fourth floor conference room where agenda review sessions are held.

About that renovation: Polk County Commission boardroom gets a $338,384 makeover. Here's why.

Garbage woes: Polk suspends recycling pick-up for 78,000 homes to remedy trash collection problems

Combee said at the Feb. 24 retreat that the county is doing the public "a disservice" by not holding thesemeetings in the boardroom where they can be videoed.

"I think we need to move the agenda review and worksessions back to the boardroom," he said. "We have a great asset there, we have plenty of room there. People could see the same things we see in those work sessions. They will see these presentations."

Another concern to Combee:Agenda review workshops often feature presentations about items to be voted on by commissioners that are never offeredduring regular board meetings, which are streamed on the county's Facebook page.

The March 1 commission meeting was viewed 544 times on Facebook as of Thursday morning.

"We discuss items (in the agenda work session) and then we move them to the consent agenda," Combee said. "We move them to the consent agenda and when we get to the boardroom, nobody ever hears anything about them. We discuss them just as if we need to know what they'reall about it, but it's as if the public doesn't need to know all of this."

Commissioner George Lindsey said he agreed with Combee, adding that the agenda review workshop should not be the place for presentations.

CommissionChairwoman Martha Santiago suggested that presentations in the future occur during Tuesday's regular board meetings.

Friday's agenda review workshop featured several presentations to commissionersthat weren't given at Tuesday's regular board meeting.

They occurred in a room without enough seating for everyone in attendance.

That's "problematic" toVirginia Hamrick, a lawyer with Florida First Amendment Foundation, a non-profit that advocates for open government.

She saidFlorida's Sunshine Law requires government meetings to be open to the public, and therefore "meetings should not take place where the public is effectively excluded," she said.

She cited Section286.011(6)of Florida Statutes.

"It specifically prohibits boards from holding meetings at a facility which operates in such a manner to unreasonably restrict public access to the facility," she said.

"The Attorney Generals Office has advised boards to take reasonable steps to accommodate all who wish to attend if a large turnout is expected," she said. "If such space is not available, boards should use technology to allow those who are not able to enter the room to view and hear discussions and proceedings

Hamrick said the public interest should be front and center of a government meeting.

"The whole purpose of the Sunshine Law is to let the public know what their government is doing and open up every step of the decision-making process," she said.

Polk's agenda review meetings are conducted in a "bizarre" fashion,according to Barbara Petersen, the executive director of the Florida Center of Government Accountability.

In a Ledger article published in December, she took exception to the county locking the door to the conference room where the meetings are held.

"If yougo a meeting where adoor is not just closed but locked, how many people walk away thinking it's closed off?" she told The Ledger. "It's poor public policy, thats for sure, and the practice is legally questionable. If it doesn'tviolate the Sunshine law it certainly violatesthe spirit of the intent of the law."

Petersen also voiced concerns about inadequate seating in the conference room, saying, "The courts have said that local agencies have to hold meetings in facilities largeenough to accommodate the anticipated turnout."

Since that article ran, the door to the meeting room has been propped open by a plant.

But public access to what happens in this meeting is still less than what's provided for regular commission meetings and the county's planning commission meetings. Since agenda workshops aren't video recorded or posted online, residents trying to find out what happened have to request a CD of the audio from the county.

Up until Friday's agenda meeting, the county charged the public $5 per CD. On Friday, Commissioner Lindsey asked that the county stop charging this fee.

"If the consensus is to stay here (in the conference room) ...I'm suggesting we simply waive that $5. If someone wants a diskof the proceedings, let them have it."

Dustin Wyatt covers Polk County government and county-wide issues.He can be reached at dwyatt@gannett.com or on Twitter @LLDustin_Wyatt.

Originally posted here:
Polk commissioner tried to make meetings more accessible to the public. His peers said no - The Ledger

March 2marked the start of the first trial of a defendant charged with federal crimes associated with the Jan. 6attack on the U.S. Capital.Guy Reffitt is standing trial for various offenses,including bringing a firearm into the assault.Also present during the Jan. 6 attack were a number of people dressed in paramilitary gear who appeared more organized than the rest of the mob. As has been alleged in subsequent Jan. 6 federal prosecution court pleadings, they were members of a self-proclaimed militia-type group called the Oath Keepers who physically breached the security of the Capitol and assaulted the building in a stack formation. Based on this apparent attempt to take over the Capitol by means of force to prevent the lawful transfer of power, just over one year later, on Jan. 12, a federal grand jury returned an indictment charging 11 Oath Keepers members, including founder and leader Stewart Rhodes, with seditious conspiracy and other related offenses.

This was not the first time, however, that a member of the Oath Keepers was involved in a self-declared takeover of a government building. On April 20, 2010, Darren Huffa self-proclaimed member of the Oath Keepers and the Georgia Militiatraveled with weapons from Georgia to join in a group, many of whom were also carrying firearms, in Madisonville, Tennessee, for the purpose of taking over the Monroe County Courthouse to arrest various county government officials for being Declared Domestic Enemies having committed treason.

While serving as a prosecutor at the U.S. Department of Justice, I prosecuted Huff. And while watching the current seditious conspiracy case against the Oath Keepers, I believe that a number of lessons from Huffs case can be useful to law enforcement and prosecutors. Before applying those lessons, its worth noting the facts of Huffs case. Why was Huff ready to arrest these county officials? His justification for the courthouse standoff centered on his belief, as reflected in the Affidavit of Criminal Complaint he carried with him on April 20, that Tennessee officials had committed treason by being engaged in constructive levy of war against the United States and Citizens of the United States through forcible resistance to the U.S. Constitution with the intent and having achieved some success installing a rival government.

After arriving in Madisonville on April 20 to participate in the arrests of selected government officials, Huff gathered with about 50 people and engaged in an armed standoff with law enforcement officers outside the Monroe County Courthouse. These law enforcement officers had been assembled in advance to prevent an effort to take over the courthouse. Unlike the Jan. 6 attack on the U.S. Capitol, the armed protesters did not attempt an assault on the county courthouse, largely due to the presence of nearly 100 local, state and federal law enforcement officers.

Huffs justification for his desired arrests lay in a Criminal Complaint and Citizens Arrest Warrant that had been drawn up in March 2010 by a locally known political agitator and former (and court-martialed) U.S. Navy commander, Walter Fitzpatrick. Fitzpatrick had previously soughtunsuccessfully, to his great frustrationon three occasions to present an indictment before a local grand jury charging then-President Obama with fraud and treason.

On April 1, 2010, more than two weeks before the incident, Fitzpatrick (with the assistance of Huff) had attempted to arrest the local grand jury foreman and the county sheriff at the Monroe County Courthouse under his Citizens Arrest Warrant. In a bit of irony, Fitzpatrick was himself arrested that day for disorderly conduct and attempting to disrupt a government meeting.

Fitzpatrick was scheduled to make a court appearance in Madisonville with regard to his criminal charges on April 20, 2020. With that court date in mind, Huff engaged in a number of communications with various others prior to April 20 seeking to organize a group to appear at the Monroe County Courthouse that day to arrest the offending county officials.

Following the April 20 standoff, a federal grand jury indicted Huff for transporting firearms in interstate commerce (from Georgia to Tennessee) with the intent to use the weapons in furtherance of a civil disorder, in violation of 18 U.S.C. 231(a)(2).This is one of the same charges that has been brought against Guy Reffitt, an alleged member of the "three Percenters" anti-government group.

A civil disorder is defined under the law as any public disturbance involving acts of violence by an assembly of more than three people that causes either the immediate dangeror actual resultof damage or injury to property or a person. Given that there was no actual clash with law enforcement or any type of riot, the federal crime of inciting a riot didnt apply to the Madisonville event. The charge of transporting a firearm in furtherance of a civil disorder was based on the combination of Huffs travel to Madisonville with firearms to participate in the arrest of government officials and his participation in an armed standoff at the courthouse with multiple people.

Testimony at Huffs trial indicated that, prior to April 20, Huff had told several people in his hometown that Fitzpatrick had been wrongly arrested, and that he was planning on arming himself with weapons (including an AK-47) and joining up with others to take over the city that day. Huff had also asserted that he fully intended to proceed to Madisonville on April 20 to arrest the offending county officials, and that he would be bringing weapons because aint no government official gonna go peacefully.

Huff was convicted in 2011 following a trial in federal court in Knoxville, Tennessee. On his appeal to the U.S. Court of Appeals for the Sixth Circuit, Huff tried unsuccessfully to challenge both the evidence introduced at trial and the constitutionality of the federal statute that he violated.

As the prosecutor in the Huff case, I watched the assault on the U.S. Capitol on Jan. 6and the involvement of the Oath Keepersand felt like I had seen similar events on a smaller scale. In both the attack on the Capitol and Huffs standoff, members of the Oath Keepers promoted self-serving, distorted patriotic rhetoric to justify criminal acts against government officials.

First, it is critical for law enforcement and government officials to take the threats of persons and groups espousing militant or violent anti-government views quite seriouslyand take precautionary action as necessary to prevent inciting words from becoming violent actions. Since 2010, and certainly since 2016 and later in 2020, extremist political and paramilitary anti-government rhetoric has grown to the point that what had been considered fringe rantings has alarmingly merged in more acceptable extreme partisan viewpoints. While there should not be any government infringement on protected First Amendment political or personal speech, communications and speech that encourages, promotes or conveys threats of violence should always be carefully considered and evaluatedand taken seriouslywithout regard to whatever political bent to outlook.

In the days preceding the April 20, 2010, Madisonville confrontation, various local, state and federal law enforcement agents, together with the prosecutors in the U.S. Attorneys Office, actively shared on a real-time basis all threat intelligence information on what appeared to be an active potential threat to public safety. A temporary task force was created to centralize and manage all relevant information being gathered from various sources, including social media chatter and witness interviews. This was done in the interest of public safety, without suppressing or downplaying information that might conflict with the views held by higher-up state or federal powers-that-be who might be inclined to agree with protesters political views. It appears that this was not the case in the days and weeks preceding Jan. 6.

Second, while fully respecting the First Amendment right to assemble peaceably, there should be sufficient law enforcement or public safety preparation. Any type of (peaceable) assembly might quickly devolve or degrade into violencewhether by design of the participants or perhaps in response to adverse provocation. Prior to the April 20 incident in Madisonville, even given a short window of time, the local police department, the state prosecutor for that area, the FBI, and federal prosecutors extensively considered the potential risks to public safety in an active risk assessment. That planning ensured sufficient resources for the worst-case scenario.

Finally, all those who undertake actionsor attempt to do sothat cross the line from theoretical advocacy to facilitating or supporting criminal conduct should be held accountable under the appropriate laws. Accountability may take the form of prosecuting one individual, such as Huff, if that represents the only feasible case with the strongest evidence. Or having the resolveand devoting the necessary resourcesto undertake a much broader effort to prosecute numerous participants and co-conspirators where the evidence demonstrates actions taken in concert, and with a common purpose, that brings harm to public institutions and government. As is reflected in the large number of ongoing Jan. 6 prosecutions, the actions taken that day posed a grave threat to the lawful operation of the U.S. government. Yet some politicians have notably sought to minimize or purposefully disregard the nature of this kind of domestic threat and have even advanced claims that the assault was undertaken by anti-Trump operatives, which may only serve to embolden those like Huff who continue believing that actions like the Jan. 6 assault are acceptable and justified in the name of liberty. Wherever the evidence leads, and however high it goes in the former administration (or associates thereof), it is vital to the nations democratic system and social values that all who are responsible, and not just the ideological foot soldiers, be held accountable.

As the Huff prosecution demonstrated, there are many people of otherwise normal backgrounds who, under the right (or wrong) circumstances, are encouraged and inspired by like-minded leaders or followers in the echo chamber of social media. These people can convince themselves that they are among the ones in the right and are justified in taking all reasonable force in the defense of what they see as liberty. Huff responded to what he saw as a patriotic call to action by a leadership figure and was not dissuaded even when FBI agents and people in his own town intervened (as seen in trial testimony). When looking back at the Huff prosecution, and the politically charged environment that led to the Jan. 6 assault, keep in mind what Samuel Johnson wrote more than 200 years ago about those who wield false patriotism as a weapon: Patriotism is the last refuge of a scoundrel."

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Was an Attempt to Take Over a Tennessee Courthouse in 2010 a Preview of Jan. 6? - Lawfare

[co-author: Maia Cohen-Lask*]

On Jan. 4, 2022, a trial that has gripped white-collar crime lawyers on both sides of the Atlantic that of Elizabeth Holmes concluded. Following a 15-week trial, jurors in the state of California returned guilty verdicts on four of the 11 counts on the indictment, convicting Holmes of defrauding investors in her company, Theranos Inc.

For British observers, the U.S. trial largely proceeded in a familiar way to an English trial of similar facts. However, one area of striking difference between the two jurisdictions lay not in the law and procedure but in the manner of the media reporting. The American coverage of the trial was elaborate and exhaustive, comprised of detailed newspaper reports on both the pretrial and trial proceedings, as well as podcasts and other analytical long-form journalism. This is a curiosity for English lawyers, who are used to conducting criminal proceedings safe in the knowledge that media coverage will usually be restrained. Indeed, much of the reporting from the American media during the course of Holmes trial would undoubtedly be in contempt of court were it to be replicated during an English trial. This reflects the different legal landscape relating to trial reporting in the U.S. as compared to the U.K. These differences will assume ever greater practical significance as prosecuting white-collar crime increasingly becomes an international endeavor.

The two jurisdictions have fundamentally different starting points when it comes to the reporting of criminal trials. In England, the position is governed by the Contempt of Court Act 1981. This creates the strict liability rule, whereby it is in contempt of court to publish anything that creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced, regardless of intent. The default position is therefore one of restriction. The exception to this restriction is an allowance for a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.

By contrast, the starting point in the United States is a permissive one, due to various constitutional protections in place. These protections uphold the principles of the freedom of speech and the freedom of the press under the First Amendment, which, while not completely without limitations, generally give reporters in America more leeway in what they report and how they cover ongoing criminal trials. There is no comparable strict liability rule on the media in the U.S., as the American system values the scrutiny of the press in criminal proceedings and views the medias criticisms as a tool to hold the justice system accountable. Thus, while counsel may move for an injunction to restrict the publication and dissemination of information in an effort to limit the medias coverage of a criminal trial, because prior restraints generally are viewed as infringing on First Amendment rights, the bar is high for the success of such motions.[1]

The different reporting environments created by the two regimes result in huge differences in the everyday reporting of trials. In England, court reports will be mostly limited to a summary of the evidence given that day, often by way of verbatim quotes, from journalists keen not to accidentally fall on the wrong side of the strict liability rule by inserting comment. By contrast, in the United States, as seen with the Holmes trial, court reporting while the trial is ongoing might include opinion pieces as to the strength of the evidence or interviews with legal experts about the prospects of success of lines of defense. Faced with this heightened level of public engagement and debate, the U.S. court will utilize alternative measures to protect the right to a fair trial indeed it is not uncommon in high-profile cases for judges to instruct juries not to consume media related to the trial.

One area of particularly marked distinction between the jurisdictions is in the reporting of pretrial rulings. In the U.K., there is an automatic ban on reporting rulings made at pretrial hearings until after the conclusion of the trial.[2] This ban can only be disapplied by the judge dealing with the matter, and only if it is in the interests of justice to do so. By contrast, in the U.S., the press generally has a right under the First Amendment to report on pretrial hearings. Judges can close pretrial proceedings to the public upon request by the prosecution and defense, but would need to make special findings on the record that the closure was necessary to preserve higher or overriding values, and the order would need to be narrowly tailored to serve those higher or overriding values.[3] In this respect, the two systems are mirror opposites: in the U.K. there is a presumption of no pretrial reporting unless the judge disapplies it, whereas in the U.S. the presumption is in favor of pretrial reporting unless the judge restricts it. This dichotomy has the effect that the U.K. public usually remains unaware of whether there have been pretrial hearings (or indeed what the outcomes of those hearings were), while in the U.S. any attempt to restrict reporting can itself become the subject of intense reporting during the trial.

This was borne out in Holmes trial, where a number of applications by her lawyers to have evidence excluded from the trial were reported on at length. For example, in May of last year, Holmes lawyers moved to exclude evidence of customer complaints about the accuracy of blood testing results. The motion was denied by U.S. District Court Judge Edward Davila, and the contents of both the motion and his ruling were widely reported on contemporaneously. In an English trial, the public would not know, at least not until the trials conclusion, that a defense team had argued to exclude evidence in this way. From the English perspective, there is a real risk that any juror aware of this fact might view the evidence when it came to be given in a different or more significant light. Meanwhile, in the American system, jurors who have been significantly influenced by pretrial media coverage should be weeded out under voir dire examination, so this type of information being in the public domain may have a more subtle impact on a jurors state of mind than the straightforward biases caught under voir dire.

The limitations that a judge can order under English law can in some circumstances go beyond comment and pretrial rulings, to limit day-to-day reporting of the evidence being given at court. (As noted above, this is usually an exception to the strict liability rule.) Under s4(2) Contempt of Court Act 1981, [T]he court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose. Such postponement is most commonly ordered where there are sequential trials of different defendants relating to the same matter. In practice, when there are sequential trials, little if anything will be reported of the earlier trials until all trials have concluded. This is not the case in the U.S. Rather, the American system relies on protections such as voir dire examination of jurors in the later trial to ascertain knowledge or bias based on reporting of the first trial, or through a change in venue to combat the risk of unfairness.

This is notable in the Theranos case, where the trial of Holmes co-defendant, Ramesh Balwani, is due to start in mid-March. His trial will take place against a backdrop of Holmes headline-grabbing evidence that she suffered a pattern of physical and psychological abuse at his hands at the time they were jointly running the company. These allegations are unlikely to form part of the prosecutions case against Balwani, and plainly Holmes will not be present at his trial for cross-examination, but given the comprehensive reporting of her testimony, Balwani may well feel that this is something he will need to address in his trial. This is not a situation a defendant in an English trial would likely ever have to face.

These differences are not merely of academic interest. In a world where white-collar crime is increasingly global, and cases where there are parallel U.S. and U.K. proceedings are on the rise, these different reporting standards have the potential to cause unfairness. This risk is particularly acute where a defendant faces trial in the U.K. and there is already extensive media coverage of a prior or concurrent trial into the same or similar facts in the U.S. That reporting may not be permitted under English law, but it is perfectly lawful under the different rules in the U.S.

A first example of how this might arise relates to the jury selection process. In the U.S., there are protections in place intended to afford a fair trial by jury despite the permissive reporting rules (for example, voir dire, mentioned above). However, in the U.K., the process of jury selection is instead usually undertaken by way of a written questionnaire designed to weed out those who have been particularly exposed to media coverage (for example, in the high-profile 2014 trial into News International journalists accused of phone hacking, individuals who followed particular campaigning celebrities on social media were excluded from serving on the jury). Direct questioning by counsel (rather than the judge) is only permitted if there is already a prima facie case to support the basis for challenging a juror. The U.K. approach is therefore a less targeted and less detailed process than the American jury selection system, which typically utilizes direct oral questioning of individual potential jurors by the judge and/or counsel in addition to pre-voir dire written questionnaires. Thus, in high-profile cases where there have been American trials with detailed global media coverage, the tools available to a British Crown Court judge to address the effects of that coverage on the subsequent U.K. trial are more limited. This presents a real risk of jurors serving in an English trial having been exposed to a degree of reporting for example, journalistic commentary on the strength of the defense being run by alleged accomplices of the defendant that the English system is simply not designed to guard against.

A defendant faced with the imbalance of U.S. reporting and a U.K. trial will therefore find themselves between a rock and a hard place. A British judge would no doubt approve a detailed jury questionnaire seeking to exclude those who had closely followed the news. And the jury would be directed to ignore any media coverage they may have seen. But without voir dire to examine how media coverage has actually affected jurors views, in reality defendants in U.K. trials will find themselves less protected than those in the U.S.

A second example relates to the tools available to a defendant to defend themselves against detailed, adverse media coverage. The different reporting rules between the U.S. and the U.K. mean that defense lawyers have a wholly different relationship with the media in the two countries. Because of the realities of trial by media in the U.S., defense attorneys in high-profile criminal cases in America may seek to use the press to their advantage by crafting a public relations strategy. This allows the defense the opportunity to publicly respond, in particular where there are misleading or inaccurate stories circulating (unless the defense is forced into silence due to gag orders). Indeed, it has become increasingly common for defense attorneys in the U.S. to engage directly with the press to publicly deny or combat statements made by the prosecution. This can include full press interviews (such as that given by Balwanis attorney, Jeff Coopersmith, to Nightline in 2019). By contrast, it is rare for English defense lawyers to make any comment before, and certainly not during, a trial. Any comments given are limited to the fact that the client protests their innocence, without details. Therefore, in a transatlantic case, a U.K. defendant may face the intensity of the press coverage of an initial U.S. trial, and perhaps co-defendants in the U.S. seeking to minimize reputational damage, with likely no similar recourse with respect to engaging with the media through their lawyers. This only exacerbates the risks of jury selection noted above.

In an increasingly international prosecution landscape, it cannot be long before a defendant in an English court finds themselves grappling with the adverse impact of American reporting arising in relation to a prior U.S. criminal trial. Given the risks outlined, lawyers in both the U.K. and U.S. should be aware of these differences in order to effectively educate and manage the expectations of their clients who may be required to stand trial on either or both sides of the Atlantic. Whats more, if this starts to become a regular issue, revisiting the way that juries are selected, and the degree of detail with which they can be examined, may be a necessary consequence.

***

*This article was co-authored by Corker Binning's senior associate

[1] See Nebraska Press Association v. Stuart, 427 U.S. 539 (1976) (finding the heavy burden imposed as a condition to securing a prior restraint was not met and reversing the lower courts decision to uphold a gag order on the media).

[2] S41 Criminal Procedure and Investigations Act 1996.

[3] See Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).

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Trial by Media: The Risks to Defendants of Differing US and UK Approaches - JD Supra