The Fifth Circuit Is In For A Beatdown

Hello, it’s the weekend. This is The Weekender ☕

Come for the utterly unhinged conspiracy theories about the COVID-19 pandemic (it originated with snake venom getting spilled into drinking water!), and stay for internal feuding at the “Stew Peters Network” — a far-right media company that has peddled conspiracy theories, anti-gay hate speech, racism, and antisemitism — about who is paying for failed GOP Senate candidate Lauren Witzke’s car.

This week I worked with TPM reporter Hunter Walker on this convoluted, entertaining and downright disturbing story about the petty drama unfolding behind the scenes at the “Stew Peters Network,” as Stew Peters, the online hate-speech broadcaster who has hosted top Republicans on his show, takes his fellow producers of a coronavirus conspiracy theory “documentary” to court. Read it here.

Here’s what else TPM has on tap this weekend:

• Kate Riga cautions against taking the Supreme Court’s decision to save the Consumer Financial Protection Bureau as a sign of moderation from the high court.

• Josh Kovensky unpacks a portion of Michael Cohen’s testimony during the Trump trial this week that focused specifically on a phone call Cohen placed — one that was seemingly, at least in part, about an annoying teenager — before making a payment to Stormy Daniels.

• Khaya Himmelman reports on the DOJ’s efforts to clamp down on election related violence — as Trump and his allies stoke fears about 2024.

• Emine Yücel wonders why everyone is using their wives as scapegoats.

— Nicole Lafond

The Fifth Circuit Is In For A Beatdown

Thursday’s Supreme Court decision validating the constitutional soundness of the Consumer Financial Protection Bureau not only reversed the Fifth Circuit, but did so via one of the appellate court’s brothers-in-ideological-arms, Clarence Thomas.

The argument against the CFPB, targeting its funding structure, was weak enough that only Justices Samuel Alito and Neil Gorsuch had the appetite to embrace it.

Doily-like arguments are no impediment either to the mostly right-wing judges on the Fifth Circuit, some of whom are openly auditioning for maybe future President Donald Trump’s SCOTUS shortlist.

This trend is likely to continue. Two high-profile cases coming down the pike — one on whether people under domestic-violence restraining orders can have guns, and one on reimposing restrictions on the abortion drug mifepristone — saw even the right-wing justices squirm during oral arguments. If it acts on those instincts, the Court would reverse the Fifth Circuit twice more.

Death, taxes, think pieces tripping over themselves to credit the Court for its moderation. While there will inevitably be columns written by people making a lot more money than I am about how this rash of cases represents some great, cloak-swathed pivot to the center, it just doesn’t. The Supreme Court repeatedly overturning the Fifth Circuit is much more about the extremity of the latter than the reasonableness of the former.

Some members of the bench’s right flank still care about the appearance of impartiality. They still get puffed up and sputtery when even right-wing litigants bring them transparently stupid arguments.

This dynamic is much rarer at the Fifth, a court populated with judges molded more in Alito’s image than John Roberts’.

If the Supreme Court does uphold a very thin layer of protection for victims of domestic violence, if it keeps mifepristone accessible as usual nationwide, those are causes for (muted) celebration. But don’t let anyone tell you it’s because the Court is getting better — the Fifth is just getting worse.

— Kate Riga

An Imperfect Phone Call

In late October 2016, Michael Cohen called Trump’s bodyguard Keith Schiller. The election was two weeks away, and Michael Cohen was on the verge of completing a task that he, and others, saw as critical to the campaign’s survival: paying off Stormy Daniels, thereby preventing her story of a sexual encounter with Donald Trump from going public. Cohen told prosecutors this week that Schiller handed the phone to Trump, who approved Cohen transferring her the money.

On cross-examination on Friday, Trump attorney Todd Blanche produced texts and elicited testimony from Cohen suggesting that the call might have had another, extremely Michael Cohen-esque purpose: fending off a 14-year-old prank caller.

Cohen testified that a teen had been bothering him around the time of the phone call, and texts shown during trial documented him complaining about the pestering teen to Schiller. He altered his testimony from what he provided on direct, saying that he spoke to Schiller first, and then asked for the phone to be handed to Trump so they could discuss Daniels.

The problem here is that phone logs show that the call lasted a little more than one minute. Blanche expressed incredulity that Cohen could have managed both on one call; as I saw it, Cohen himself seemed somewhat doubtful.

After an otherwise extremely digressive cross, Blanche managed to land a real blow here — perhaps the most damaging one of the trial. The damage is limited — there were other calls, and other credible instances in which Trump clearly knew what was going on. Apart from everything else, it must have been an extremely weird and harrowing experience for the 14-year old. We were shown texts in which Cohen, weeks out from the election, threatened to call the Secret Service on the teen unless he received the contact information for the 14-year old’s parents.

— Josh Kovensky

DOJ Tries To Get Out Ahead Of 2024 Violence While Trump Stokes It

Justice Department officials this week warned against the increasingly pressing threat to election workers ahead of the 2024 election, and emphasized the department’s commitment to combating these threats and holding those who perpetuate violence against election workers accountable.

Attorney General Merrick Garland, ahead of a meeting of the Election Threats Task Force, developed in 2021 to specifically address the issue of election worker violence, spoke to reporters about the rising threat to election workers.

“We are meeting today for the same reason I launched this Task Force three years ago: we have seen a dangerous increase in violent threats against public servants, the ones who administer our elections,” he said. “Those threats endanger our democracy itself.”

According to the Justice Department, as of last August, the committee has brought charges in 14 cases and has had nine convictions related to election worker threats.

As Garland noted on Monday, the committee secured the guilty plea of a man who said a Michigan election worker was deserving of a “throat to the knife.” The committee also secured a two and a half year sentence for a man who threatened to lynch an Arizona election official, among others.

“Each of these cases should serve as a warning: If you threaten to harm or kill an election worker, volunteer, or official, the Justice Department will find you,” Garland said. “And we will hold you accountable.”

Garland’s message comes at a time when election denying Republicans are sowing seeds of distrust in the country’s election system, only increasing the likelihood of further violence against election workers in the fall.

Election experts previously noted to TPM that the violence and intimidation are only expected to ramp up this year and will be particularly pervasive if the election is close.
“I think there’s going to be this push just like we saw in 2020 against the system and against officials,” former registrar of voters for Orange County, California Neal Kelley previously told TPM.

— Khaya Himmelman

Everyone Is Blaming The Wife

In Friday’s Morning Memo, we caught you up on the shenanigans of Supreme Court Justice Samuel Alito — who blamed his wife when the New York Times asked him about an American flag that was flying upside down outside his Virginia home in the run-up to Biden’s inauguration, a symbol that was also used at the time by “Stop the Steal” demonstrators.

This kind of blame-shifting seems to be in vogue — Alito isn’t the only political figure to point the finger at his wife, screaming “not it,” recently.

During opening arguments this week in Sen. Bob Menendez’ (D-NJ) federal bribery trial, Menendez’s attorney argued that his wife Nadine Menendez was involved in business dealings the senator was not aware of. The lawyer even claimed the gold bars that brought so much attention to the case were locked in Mrs. Menendez’ closet.

Now accusing your wife of bad judgment to protect your political career is one thing but accusing your wife who is currently undergoing treatment for breast cancer … Well, I’m not sure how politically sound of a defense that is.

Now to be fair, Nadine Menendez was also charged as part of the same federal investigation. So the prosecutors agree that Mrs. Menendez, who’s trial was postponed until July due to her diagnosis, was a part of the alleged crimes committed. But they are arguing that the evidence they will present during trial will show the New Jersey senator was aware of his wife’s actions.

On Capitol Hill, Sen. John Fetterman (D-PA) — who’s been a vocal critic of Menedez — seems to be on the same boat as us… confused as to how smart the blame-your-wife strategy is.

“I can’t imagine anybody in his legal circles would think that throwing your wife under the bus was ever good,” Fetterman told Politico. “And now that she is sick with cancer, I can’t really think that’s a smart PR move. I don’t even see the legal upside on that.”

— Emine Yücel

Words Of Wisdom

“I think he is praying. But if he is sleeping… [he] certainly looks pretty while he sleeps. Maybe it’s an endearing moment of prayer though. I know when I fall asleep on airlines, you know my mouth kind of drops open, and you know his mouth is kind of tight-lipped so maybe it’s a somber moment of thought.”

That’s Rep. Lauren Boebert (R-CO) during a House Oversight and Accountability Committee meeting commenting on a photo of former President Trump with his eyes closed, dozing off, during his New York hush money trial.

I’m not going to get into whether Trump is the sleeping beauty Boebert claims he is — mostly because there’s not much to discuss there… 
But let’s be honest here folks, we all have eyes. Trump was sleeping in that photo. Several news outlets even reported it as such, saying he was spotted with his head drooping and mouth slack on multiple occasions.

— Emine Yücel