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June 28, 2019

CAFE Brief 06/28: Supreme Court decisions, Mueller’s testimony, and detainment conditions

On the docket for Monday’s episode of the CAFE Insider podcast: Flowers v. Mississippi. Preet Bharara and Anne Milgram will break down the Supreme Court’s recent decision in this capital quadruple murder case where the prosecutor repeatedly struck black people from the jury pool. Plus, they’ll share their own—at times bizarre—experiences and approach to empaneling a jury. To listen, join the CAFE Insider community. Thank you to all for supporting our work!

June 28th, 2019

No sign of the news cycle slowing down, and we’re on top of it. The Supreme Court handed down two key decisions on partisan gerrymandering and the 2020 Census citizenship question; Robert Mueller agreed to testify before Congress on July 17; and Congress approved $4.6 billion to address the humanitarian crisis at the Southern border. Let’s dive in!

WASHINGTON,DC-MAR26: Demonstrators protest against gerrymandering at a rally at the Supreme Court during the gerrymandering cases Lamone v. Benisek
and Rucho v. Common Cause.(Photo by Evelyn Hockstein/For The Washington Post via Getty Images)

Supreme Court decisions

In a 5-4 decision, the Supreme Court ruled that partisan gerrymandering cases are outside the purview of federal courts reasoning that so holding will enable state legislators to decide how to set boundaries of electoral districts with more authority and independence. Chief Justice John Roberts, joined by the Court’s other four conservative justices, wrote: “[P]artisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.” Justice Elena Kagan authored the dissent, saying “[o]f all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government.”

In another decision handed down Thursday, Justice Roberts joined the Court’s liberal justices in temporarily preventing the Commerce Department from adding the citizenship question to the 2020 Census. Justice Roberts wrote that there was “a significant mismatch” between Commerce Secretary Wilbur Ross’s decision to add the question and his “contrived” rationale that it was needed to enforce the Voting Rights Act. The Court sent the case back to the District Court, permitting the Commerce Department the opportunity to come up with a less pretextual reason for adding the citizenship question. It is unclear when the lower court will revisit the citizenship question, complicating the Census Bureau’s July 1 deadline for printing the census forms and raising concerns from the Trump administration as to whether the government will be able to add the question should it ultimately prevail. President Trump tweetedthat it “seems totally ridiculous” that the government cannot ask about an individual’s citizenship, and that he “asked the lawyers if they can delay the Census.”

Mueller to testify before Congress

Special Counsel Robert Mueller has agreed to publicly testify before the House Judiciary Committee and the House Intelligence Committee in separate back-to-back hearings on July 17. In a June 25 letter to Mueller, House Judiciary Chairman Jerry Nadler (D-N.Y.) and House Intelligence Chairman Adam Schiff (D-C.A.) said that they understood why Mueller was reluctant to speak publicly, but insisted that “the American public deserves to hear directly” from him about his “investigation and conclusions.” In addition to Mueller’s public testimony, the House Intelligence Committee plans to hold a closed session to interview an unspecified number of the Special Counsel’s senior deputies.

In a CNN interview, Trump’s lawyer Jay Sekulow said that “no legal moves” are being made by the administration to try to block Mueller’s testimony next month. Attorney General Bill Barr told the Senate Judiciary Committee in May that he had “no objection to [Mueller] testifying.” Yet, shortly after word spread that Mueller would testify, Trump called the investigation was a “witch hunt” and falsely accused Mueller of deleting texts between former FBI employees Peter Strzok and Lisa Page.

Migrant detention facilities

A group of doctors and lawyers are sounding the alarm over the conditions at migrant detention facilities after a visit to an overcrowded border station in Clint, Texas, revealed unsanitary and unsafe conditions. The group said they found hundreds of infants, children, and teens detained for weeks without adequate food and access to soap or clean clothes. The increased public scrutiny led to the transfer of most of the children out of Clint and into the shelter system.

Last week, Justice Department attorney Sarah Fabian shocked judges and the public when she argued, before the U.S. Court of Appeals for the 9th Circuit in San Francisco, that the 1997 Flores settlement agreement requiring “safe and sanitary conditions” at detention facilities does not require the government to provide detained migrant children with items such as soap and toothbrushes. Pushing back on Fabian’s argument, Judge A. Wallace Tashima said, “[i]t’s within everybody’s common understanding that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, that’s not ‘safe and sanitary.’” After video of the oral argument drew widespread criticism, Fabian posted a private message on her Facebook page denying that she was arguing that detained children should not be given hygiene products: “I will say that I personally believe that we should do our very best to care for kids while they are in our custody, and I try to always represent that value in my work.”

On Thursday, the House passed a $4.6 billion emergency spending bill to address the humanitarian crisis on the Southern border. The bill includes funding for the Office of Refugee Resettlement that cares for unaccompanied children, as well as for Customs and Border Protection, the Pentagon, and other agencies. Trump is expected to sign the bill as the Republican-controlled Senate has already passed it. With time and government money running out to manage the migrant detention facilities, Democratic leaders gave up on their efforts to amend the Senate-approved bill once Senate Republicans and the Trump administration announced strong opposition to the bill.

A sign for The US Customs and Border Protection facility is seen in Clint, Texas, on June 26, 2019. – The site held about 250 children in crowded cells, with limited sanitation and medical attention, as reported by a group of lawyers able to tour the facility under the Flores Settlement. (Photo by Paul Ratje / AFP) (Photo credit should read PAUL RATJE/AFP/Getty Images)

Kellyanne’s Hatch Act violations

The House Oversight Committee held a hearing on Wednesday to address the determination, by the Office of Special Counsel (OSC), a federal agency unrelated to Mueller, that White House counselor Kellyanne Conway repeatedly violated the Hatch Act—a law that prohibits federal employees from engaging in political speech in their official capacity. Henry Kerner, who heads the OSC, expanded on his May 30 report recommending Conway’s termination, telling the Committee that Conway’s “egregious and repeated Hatch Act violations, combined with her unrepentant attitude, are unacceptable from any federal employee.” Conway failed to appear at Wednesday’s Committee hearing, resulting in a 25-16 vote to subpoena her testimony, with Rep. Justin Amash (R-M.I.) being the only Republican to vote in favor of the subpoena.


  • The House Judiciary Committee reached a deal with Annie Donaldson, Don McGahn’s former chief of staff, to submit written testimony within a week and appear in person later this year. The White House reportedlyplans to block Donaldson’s testimony by claiming she has “absolute immunity” from testifying about her time in the administration. Chairman Nadler intends to challenge this theory of blanket immunity in court as early as next week.
  • U.S. District Court Judge Emmet Sullivan rejected an attempt by Trump and the Justice Department to delay the emoluments clause lawsuit brought by 200 congressional Democrats against the President. Sullivan held that Democrats can begin a three-month discovery period on June 28, but Justice Department spokeswoman Kelly Laco said that the government would appeal the decision.
  • At CNN’s request, U.S. District Court Judge Beryl Howell released a listof close to 700 requests Mueller made for search warrants, call and message traces, and targets’ electronic records. Nearly all the documents remain under seal.
  • U.S. District Court Judge Amy Berman Jackson unsealed more than 50 pages of Paul Manafort’s texts, including many exchanged with Fox Newshost Sean Hannity. The pair regularly discussed Mueller’s investigation, with Manafort promising to never “give up” Trump, Trump’s family, and “especially” Jared Kushner to Mueller and his team. Meanwhile, Manafort pled not guilty to state charges brought by the Manhattan District Attorney’s Office, a case that may raise a double jeopardy issue.
  • For over eight hours on Tuesday, the House Intelligence Committee interviewed Giorgi Rtskhiladze, a Georgian-American businessman who had pitched a plan to build a Trump Tower in Moscow. According to The Wall Street Journal, Rtskhiladze was asked about his interactions with the Trump organization and Michael Cohen, as well as a text message he had sent to Cohen referencing compromising tapes of Trump in Russia’s possession.

Further Reading

“Michael Flynn’s New Lawyer Seeks Security Clearance, Citing Unknown Evidence,” The New York Times, 6/24/2019

“Prosecutors: Rep. Duncan Hunter used campaign funds to pursue affairs,” Politico, 6/25/2019

“House Democrats probe Trump’s overhaul of security clearance process,” Reuters, 6/24/2019

“Craig worked with Manafort aide that FBI links to Russian intelligence,” Politico, 6/24/2019

“Judge orders Roger Stone to explain Instagram posts attacking FBI, prosecutors despite gag order,” The Washington Post, 6/21/2019

“Felix Sater, Trump Associate, Skips House Hearing and Now Faces a Subpoena,” The New York Times, 6/21/2019

“Massachusetts federal judge blocks ICE from making civil immigration arrests inside state’s courthouses,” CNN, 6/20/2019

Stay Informed,

Adrienne Cobb & the CAFE team

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