One sentence from the Supreme Court's ruling against an OSHA vaccine rule reveals its upside-down logic

In a new ruling on Thursday, the six conservative justices on the U.S. Supreme Court blocked the Biden administration from implementing a sweeping requirement for vaccines under the Occupation Safety and Health Administration. Using OSHA's power to regulate employers, the administration sought to require any company with 100 workers or more to ensure that employees are either vaccinated against COVID-19 or are tested weekly for the virus.

Writing in a per curiam decision, the court's six-justice conservative majority used twisted logic to overrule the administration's decision. The three liberal justices wrote a joint dissent, arguing that the court's decision overstepped its own authority.

(In a separate case decided at the same time, conservative Justices Brett Kavanaugh and John Roberts joined the liberals to uphold the administration's mandate requiring vaccination for health care workers at facilities receiving funds from Medicaid and Medicare.)

To justify its opposition to the OSHA vaccination rule, the majority argued that the administration exceeded the authority delegated by Congress. But to come to the conclusion, it had to use a rather bizarre and seemingly contradictory line of reasoning.

The decision explained:

The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.” ... She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. [emphasis original]

It's hard to figure out what this last sentence really means. It's essentially saying, "Though COVID-19 is a danger in the workplace, it's not a workplace danger." The phrasing tries to dance around this obvious contradiction by using the word "occupational" instead of "workplace," by inserting meaningless italics, and by appending the words "in most" at the end — without justifying or explaining their inclusion or relevance. But don't get confused — the court's claim is just as nonsensical as my version.

The next sentence in the decision only further highlights the majority's confused reasoning: "COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather."

Two of the examples listed here, schools and sporting events, are workplaces for many people. So while trying to insist that the virus is much more than a workplace hazard, the conservative justices really just showed that our workplaces are much more entangled with the rest of our lives than they'd like to admit. This counts in favor of dismissing the supposed difference between workplace hazards and generalized hazards, rather than resting a crucial decision on the supposed distinction.

Moreover, the conservative justices failed to acknowledge an obvious point: For many, many people, the workplace is likely by far the most dangerous place for them in terms of COVID risk. They have little choice about whether and when to go, who they will be working with, and under what conditions. The vaccine and testing requirements make them safer from the virus than they would be otherwise, including in the broad scope of all their other daily activities. This is a clear way in which the risk from COVID-19 is distinctly occupational. But somehow, the majority wants us to believe that this isn't a matter of workplace safety.

A later paragraph in the majority decision better reveals what is really driving the conservatives' view:

That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”

Here, the justices admit that COVID-19 can be a workplace hazard. But what they fear is that the administration is using the OSHA rule in an "indiscriminate" way as a public health measure. There's nothing in the law to prohibit the administration from doing this, and there's no clean distinction between public health and workplace safety anyway, as the schools and sporting events examples show. The conservatives just worked backward from their conclusion that they didn't like what the Biden administration had done, and so they had to use twisted logic to justify its decision legally.

As the liberals pointed out in dissent, there's nothing in the law to justify the majority's distinction between workplace hazards and more general public health hazards:

Of course, the majority is correct that OSHA is not a roving public health regulator, see ante, at 6–7: It has power only to protect employees from workplace hazards. But as just explained, that is exactly what the Standard does. See supra, at 5–6. And the Act requires nothing more: Contra the majority, it is indifferent to whether a hazard in the workplace is also found elsewhere. The statute generally charges OSHA with “assur[ing] so far as possible . . . safe and healthful working conditions.” 29 U. S. C. §651(b). That provision authorizes regulation to protect employees from all hazards present in the workplace—or, at least, all hazards in part created by conditions there. It does not matter whether those hazards also exist beyond the workplace walls.

So the majority invented a distinction not found in the text to limit the administration's authority. It claimed that if Congress really wanted the administration to have the authority to require workers to be vaccinated, it could have written that it to the law. But if Congress had wanted to restrain the scope of OSHA further than what the text itself says, lawmakers also could have done that; they didn't.

Instead, the majority cites the fact that the Senate recenlty issued a majority vote of disapproval of the administration's use of the OSHA rule. But that's less telling for what it was than for what it wasn't: actual action by Congress to restrict the administration's authority. If Congress wanted to limit the authority it has written into the law, it could do that — but it hasn't.

The fact that the conservative majority was willing to block the administration's action on such obviously flimsy and flawed reasoning is a disturbing sign for what might be coming if the Supreme Court remains in its current form.

IN OTHER NEWS: Legal experts say new sedition charges prove a coup and insurrection on Jan. 6

Legal experts say new sedition charges prove a coup and insurrection on Jan. 6 www.youtube.com

The state of Florida is under fire for trying to silence professors who want to testify about voting rights

After public outrage over its decision to block professors from testifying as expert witnesses about voting rights, the University of Florida tried to defend itself this week by issuing a statement claiming to support "academic freedom." But critics argued in response that such a defense was blatantly hypocritical, and its treatment of its faculty cannot be justified.

The dispute first arose when political science professors Michael McDonald, Sharon Austin, and Daniel Smith were told by the university that they could not testify as expert witnesses in a case against Florida's voting laws. Officials for the university claimed it was a "conflict of interest" for the professors, as state employees, to testify in cases against Florida's interest.

Many quickly pointed out that this was a clear case of government censorship, effectively shutting down critics of the state in an extremely consequential circumstance. It's all the more egregious because Florida Gov. Ron DeSantis, like many other Republicans, has presented himself as a defender of the value of free speech.

"It is a profound, chilling, frightening change in policy,'' said Paul Donnelly, a lawyer for the professors, according to the Miami Herald. "What would happen if another party was in control and could engage in this kind of censorship."

Austin said: "We must support academic freedom no matter what the consequences are."

In a statement, the university claimed it is a proponent of free speech — even while confirming the story:

Recent news reports have indicated the University of Florida denied requests of some faculty members to participate in a lawsuit over the state of Florida's new election laws.

The University of Florida has a long track record of supporting free speech and our faculty's academic freedom, and we will continue to do so. It is important to note that the university did not deny the First Amendment rights or academic freedom of professors Dan Smith, Michael McDonald and Sharon Austin. Rather, the university denied requests of these full-time employees to undertake outside paid work that is adverse to the university's interests as a state of Florida institution.

On Twitter, McDonald suggested that even this statement was, in part, the university's misleading spin. When the professors requested permission to serve as expert witnesses, the university's denial was not based on the fact that it would be "paid work," as the statement implied, he said. According to the rejection notice he posted, officials objected to the fact that the professor's testimony would be "adverse to UF's interests."

FIRE, an organization that promotes freedom of expression in academia, said in a statement: "The profound civic importance of fair trials requires the ability of fact and expert witnesses to come forward to testify truthfully without fear that their government employer might retaliate against them. Public university faculty are no exception. We call on UF to reverse course immediately."

"Gov. Ron DeSantis has opposed Big Tech censorship and touted the free speech of parents," said Politico reporter Marc Caputo said on Twitter. "But University of Florida has muzzled 3 stat professors from testifying against a new voting-restriction law. Where does DeSantis stand?"

The New York Times reported:

Robert C. Post, a Yale Law School professor and expert on academic freedom and the First Amendment, said he knew of no other case in which a university had imposed prior restraint on a professor's ability to speak.

"The university does not exist to protect the governor," he said. "It exists to serve the public. It is an independent institution to serve the public good, and nothing could be more to the public good than a professor telling the truth to the public under oath."

'Red flags were everywhere': Bombshell report finds the Trump administration ignored warnings of 1/6 violence

A new report from the Washington Post published on Sunday detailed a deep dive into the extensive warnings the federal government received of potential violence and efforts to interfere with Congress's counting of the Electoral College votes on Jan. 6. Despite this ample foreshadowing, the administration and law enforcement agencies were still unable or unwilling to prepare adequate defenses to keep the mob from storming the Capitol that day.

The FBI, in particular, comes off looking inept — if not driven by politically inspired cowardice or indifference.

"The FBI received numerous warnings about Jan. 6 but felt many of the threatening statements were 'aspirational' and could not be pursued," the report found. "In one tip on Dec. 20, a caller told the bureau that Trump supporters were making plans online for violence against lawmakers in Washington, including a threat against Sen. Mitt Romney (R-Utah). The agency concluded the information did not merit further investigation and closed the case within 48 hours."

Donell Harvin, the head of intelligence at the homeland security office in Washington, D.C., did raise the alarm, according to the report. It explained how he "organized an unusual call for all of the nation's regional homeland security offices" — a call joined by hundreds of officials sharing their concerns. They were reportedly warning of an attack on Jan. 6 at 1 p.m. at the U.S. Capitol, just when the insurrection occurred. The planning was happening all over social media, after all — inspired by then-President Donald Trump's own tweets and rhetoric. Harvin reached out to the FBI and other agencies to warn them of what was coming, the report found.

He feared a "mass casualty event," according to the Post.

"While the public may have been surprised by what happened on Jan. 6, the makings of the insurrection had been spotted at every level, from one side of the country to the other," it said. "The red flags were everywhere."

Despite specific warnings of the exact nature of the attack that was coming — the planning of which would certainly be illegal — it appears the FBI limited itself for fear of infringing on First Amendment-protected activity. The Post also suggested that FBI Director Christopher Wray, who was often under fire from Trump, feared angering the man who appointed him by speaking out about the potential for violence.

"The FBI chief wasn't looking for any more confrontations with the president," the Post found, citing current and former law enforcement officials.

Wray remains in his position to this day.

Meanwhile, the Post reported, the Department of Homeland Security did not put out a security bulletin to alert other agencies of the dangers, despite receiving, "sobering assessments of the risk of possible violence on Jan. 6, including that federal buildings could be targeted by protesters."

As has previously been reported, officials in the U.S. Capitol Police were aware of at least some of the danger posed by Trump supporters still angry about the election in the run-up to Jan. 6. These warnings, however, didn't make it to Chief Steven Sund, and he failed to effectively coordinate with the National Guard to get protection for the Capitol. The Capitol Police itself was woefully under-prepared for the assault, as has been widely reported. Sund resigned following the attack, one of the few officials to face real accountability for the failures that led up to that day.

'The State’s gambit has worked': Justice Sotomayor decries the court's refusal to lift the Texas abortion ban

U.S. Supreme Court Justice Sonia Sotomayor issued a lone dissent on Friday as her colleagues once again refused to block the Texas abortion ban, even under a request from the Department of Justice.

The court did agree to take up the matter for oral arguments swiftly. On Monday, Nov. 1, the court will hear from both sides in the case on the question of whether the U.S. administration can intervene and temporarily block the law from going into effect as the cases proceed.

But Sotomayor, as she has previously, argued that the court should have issued an injunction blocking the abortion ban from being enforced immediately. The law is already having massive effects on the constitutionally protected right to obtain an abortion in Texas, she argued, and yet a majority of the justices is allowing the state to use procedural loopholes to undermine the court's own ruling precedents.

"The State's gambit has worked," she wrote. "The impact is catastrophic."

To circumvent existing law protecting the right to get an abortion, Texas legislators enacted a scheme the prohibits abortion after six weeks — well before a pregnancy may have even been detected — but outsources enforcement to the courts and citizens. The ban, known as S.B. 8, allows anyone to sue those who assist in an abortion for $10,000. Because of this unique enforcement mechanism, a majority of the Supreme Court's conservative justices have said that the issues are too complex to warrant an immediate injunction against the law.

This decision, Sotomayor argued, is a betrayal of the court's authority — and it is having the practical effect of infringing on the rights of people seeking abortions. She explained:

On a human level, the District Court relied on credible declarations that described the threat of liability under S. B. 8 as "nothing short of agonizing" for abortion care providers. ... Providers are "seriously concerned that even providing abortions in compliance with S. B. 8 will draw lawsuits from anti-abortion vigilantes or others seeking financial gain." ... Patients are "devastated" to learn they cannot access care, and the "turmoil" caused by the Act leaves them "panicked, both for themselves and their loved ones." ... Even among the few women who are able to receive abortion services in Texas, S. B. 8 pushes patients "to make a decision about their abortion before they are truly ready to do so."

To be sure, the court agreed, "[p]regnant people from Texas are scared and are frantically trying to get appointments" in other States. ... The court found, however, that many patients are unable to seek out-of-state care based on financial constraints, dangerous family situations, immigration status, or other reasons. Id., at *42. These individuals "are being forced to carry their pregnancy to term against their will or to seek ways to end their pregnancies on their own." ...

The court also found that patients who are able to leave Texas have encountered restrictions and backlogs exacerbated by S. B. 8, citing evidence of the Act's "stunning" and "crushing" impacts on clinics in Oklahoma, Kansas, Colorado, New Mexico, and Nevada. ... An Oklahoma provider, for example, reported a "staggering 646% increase of Texan patients per day," occupying between 50% and 75% of capacity. ... A Kansas clinic similarly reported that about half of its patients now come from Texas. Id., at *44. The District Court found that this "constant stream of Texas patients has created backlogs that in some places prevent residents from accessing abortion services in their own communities.


"I cannot capture the totality of this harm in these pages," she continued. "But as these excerpts illustrate, the State (empowered by this Court's inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other States."

Most legal observers expect that the court is well on its way to formally overturning Roe and Casey, the precedents recognizing a right to get an abortion, or to so drastically alter the interpretation of this right that they may as well have been overturned. But it's widely believed the court will use an upcoming case about a Mississippi abortion law if it truly does intend to make major changes to its precedent. It's much less clear how the court will handle the Texas case after oral arguments.

Mitch McConnell makes a mockery of Sinema and Manchin's defense of the filibuster

Senator Mitch McConnell and his wife exit the U.S. Capitol at the conclusion of the 59th Presidential Inauguration at the U.S. Capitol Building, Washington, D.C., Jan. 20, 2021. Military personnel assigned to Joint Task Force - National Capital Region provided military ceremonial support during the inaugural period. (DoD photo by U.S. Air Force Senior Airman Kevin Tanenbaum)

Senate Minority Leader Mitch McConnell seems to be almost intentionally making a mockery of the small number of Democratic senators who continue to defend the filibuster.

Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona have vocally opposed any effort to change the chamber's rules that require 60 votes to proceed on most legislation. Many Democratic lawmakers and advocates have called for the filibuster to be abolished, which would make it easier for the party to enact various pillars of its agenda.

The filibuster issue has once again come into focus because the debt ceiling. The American government is approaching the statutory limit on the amount of money it can borrow to fund the spending that Congress has already mandated, and if the limit is reached sometime later in the month, the country may go into default. The actual consequences of default are unknown because it has never happened before, but many analysts believe it would be economically calamitous and a devastating blow to the United States' financial standing.

Few people seriously think default is a good idea. But McConnell has taken the firm position that every Republican in the Senate will refuse to vote to raise the debt ceiling, and will in fact use the filibuster to prevent Democrats from doing so. His intention appears to be to force Democrats to use the budget reconciliation process in order to waste time and make their lives more difficult — even though the Democrats consistently voted with the GOP to raise the debt ceiling when Donald Trump was president. Democrats have refused to play along with McConnell's threats, setting up an extraordinarily high-stakes game of legislative chicken.

The Democrats do have another option to raise the debt limit. They could unilaterally change the filibuster rules to allow for the debt ceiling to be easily raised with just 51 votes. Manchin has already ruled this out, however, and Sinema likely agrees, since she's shown no sign of wavering from her previous stance.

The problem for them is that McConnell's hostage-taking exposes the central argument both Sinema and Manchin have made for keeping the filibuster as a fraud.

In separate op-eds, they have claimed that the 60-vote filibuster threshold encourages bipartisanship. Sinema wrote:

I understand bipartisanship seems outdated to many pundits. But the difficult work of collaboration is what we expect in Arizona. And I still believe it is the best way to identify realistic solutions — instead of escalating all-or-nothing political battles that result in no action, or in whipsawing federal policy reversals.
Since I was elected to Congress, a bipartisan approach has produced laws curbing suicide among our troops and veterans, boosting American manufacturing, delivering for Native American communities, combating hate crimes, and protecting public lands.
It's no secret that I oppose eliminating the Senate's 60-vote threshold. I held the same view during three terms in the U.S. House, and said the same after I was elected to the Senate in 2018. If anyone expected me to reverse my position because my party now controls the Senate, they should know that my approach to legislating in Congress is the same whether in the minority or majority.
Once in a majority, it is tempting to believe you will stay in the majority. But a Democratic Senate minority used the 60-vote threshold just last year to filibuster a police reform proposal and a covid-relief bill that many Democrats viewed as inadequate. Those filibusters were mounted not as attempts to block progress, but to force continued negotiations toward better solutions.

And Manchin wrote:

The filibuster is a critical tool to protecting that input and our democratic form of government. That is why I have said it before and will say it again to remove any shred of doubt: There is no circumstance in which I will vote to eliminate or weaken the filibuster. The time has come to end these political games, and to usher a new era of bipartisanship where we find common ground on the major policy debates facing our nation.

Many have already criticized these arguments, pointing out that the filibuster incentivizes inaction rather than compromise and that eliminating the 60-vote threshold might actually increase the amount of bipartisan legislation.

But the GOP's current use of the filibuster is the height of absurdity. It has nothing to do with bipartisanship. Even McConnell explicitly agrees that the debt ceiling must be raised. He is simply using the filibuster and the threat of economic disaster to force the Democrats to run through procedural hoops that will make it harder to achieve their policy agenda. It is exactly the kind of "political game" that Manchin said he wanted to end by keeping the filibuster.

It would be hard to invent a more clownish and ridiculous use of the filibuster if you tried. And it's entirely enabled by Sinema and Manchin's stubborn insistence that the filibuster is good for democracy.

On Tuesday night, President Biden told reporters that changing the filibuster to raise the debt ceiling is on the table, in his mind.

But even if most Senate Democrats agree, they need complete unanimity as a party for the plan to work. McConnell, for his part, doesn't seem to think Sinema or Manchin will be budging. As NBC News' Sahil Kapur reported on Tuesday, when McConnell was asked about the possibility of a change to the filibuster, he literally smiled.

Sinema and Manchin's plan crashes and burns after a key miscalculation

President Joe Biden met with the House Democratic caucus on Friday and confirmed what had already become clear the previous night: Democratic Sens. Kyrsten Sinema of Arizona and Joe Manchin of West Virginia have failed in their plan this week.

Multiple reports confirmed that the president's message was clear. The bipartisan infrastructure bill that passed the Senate in August isn't going to pass the House until there's a deal within the Democratic Party on the reconciliation bill — which includes a slew of tax increases and social program spending that progressives are demanding.


What this means in the short term is that the more conservative Democrats — including Sinema and Manchin, but also some House members such as Rep. Josh Gottheimer of New Jersey — aren't getting their way. They wanted the bipartisan infrastructure bill to pass the House and become law before the formal negotiations began on the reconciliation package.

Their reasons for preferring this strategy aren't entirely clear, and they may have diverse motivations. But the fundamental logic behind the plan was straightforward. They are more enthusiastic about spending on infrastructure and have qualms with the more expansive reconciliation package. Some of them may prefer to see the reconciliation bill fail altogether rather than pass. So they wanted to get the infrastructure bill signed into law so they could take away the progressives' leverage before entering into intra-party negotiations. As long as the progressives can threaten to block the infrastructure bill — as they did successfully Thursday night — they have a strong hand to demand concessions from the conservative Democrats in the reconciliation bill.

Manchin, Sinema, and Gottheimer seemed genuinely surprised that their plan didn't work. But there's no reason for shock. The congressional progressives and the Democratic leadership made clear from the start that they viewed both bills as an inseparable pair — the "two-track process," as it was called. Everyone was aware of this — despite Manchin's later claims of ignorance. This process was the reason progressives tolerated the conservatives' efforts during the spring and summer to work extensively with Republicans to get bipartisan agreement in the Senate on the infrastructure bill.

Sinema and Manchin were central players in the Senate negotiations, which were a subject of pride for both of them. They clearly concluded that, having negotiated the infrastructure deal in the Senate, they could pressure the House to pass the same bill. They would then have the upper hand in the reconciliation negotiations, if they even allowed such talks to take place.

But Sinema and Manchin miscalculated. They thought they could walk all over the House progressives and make unilateral demands without giving up any concessions. They thought their crucial votes in the Senate and their small number of allies in the House Democratic caucus gave them the power for them to dictate the whole process.

It didn't work because the progressives were able to stick together. Led by Democratic Rep. Pramila Jayapal of Washington, the Congressional Progressive Caucus consistently and convincingly promised that it had enough votes to tank the infrastructure bill without a deal on the reconciliation bill. This threat kept House Speaker Nancy Pelosi from even bringing the bill up for a vote in her chamber this week, despite her previous pledges to the conservative Democrats to do so. And Sinema and Manchin never even bothered to garner enough votes from House Republicans to subvert such a threat from the progressives.

Many media outlets framed this as a failure for the Biden presidency. It's possible that will end up being true, if neither bill ever passes. But some observers argued that progressives are really doing Biden a favor — whether he currently agrees or not — by using their leverage against the conservative Democrats and ensuring that more of his agenda passed. And Manchin and Sinema have been forced to grudgingly enter into real negotiations over the reconciliation bill, a sign that deliberative progress is actually being made.

Biden reportedly acknowledged Friday that the progressives will have to accept a smaller reconciliation bill than they were hoping for — currently pegged at $3.5 trillion — but it will quite likely be bigger than it would've been if they had caved this week. And the president said Friday that he still believes Congress will get the work done:



So Biden's not a failure — at least not yet. What failed is Sinema and Manchin's plan. They thought they could force their infrastructure bill through after treating members of their own party worse than they treated Senate Republicans. It didn't work. They can keep negotiating, of course, and they have every reason to. But it won't be on the terms they'd hoped.

Legal expert says Trump's rally admission will help Georgia prosecutors investigating him

Former President Donald Trump may have inadvertently helped contribute to the criminal case against him brewing in Georgia during his rally on Saturday, according to one former federal prosecutor.

Joyce Vance, a legal analyst for MSNBC, said on Twitter that his comments about a call to Gov. Brian Kemp after the 2020 election would be valuable to the district attorney in Fulton County.

"I got this guy elected!" Trump told rallygoers of Kemp in one widely viewed clip. He quickly added, however, that there was no "quid pro quo."

He continued: "I said, 'Brian, listen, you know, you have a big election integrity problem in Georgia. I hope you can help us out and call a special election, and let's get to the bottom of it for the good of the country."

"The evidence to support the Fulton County DA's investigation just keeps getting better -- prosecutors don't always have a target on tape explaining his thought process," said Vance in response to the clip. "Also probative on Trump's state of mind on Jan 6."

Vance also linked to a recent report from the Brookings Institution, which argued that Trump is in serious legal peril from the Fulton County prosecutors because of his post-election conduct. This includes the call to Kemp but also other efforts to have his loss to Biden in the state overturned, such as his call to Secretary of State Brad Raffensperger. The report argued that Trump may be guilty of soliciting election fraud or related crimes.

"Looking to the full context and circumstances of Trump's interactions with Kemp, Raffensperger, Watson, Carr, and others—as well as to his broader pattern of conduct throughout the relevant time period—it seems clear that Trump intended that Georgia officials engage in conduct that would alter the vote count, undo the certification of the election, and produce a new certification in Trump's favor," the report explained. "Even if Trump acted in what he considered good faith, the conduct that he solicited, demanded, urged, and threatened was itself criminal—and for that reason, Trump can be held liable."

However, it remains unclear if the local prosecutors with jurisdiction ultimately intend to bring any criminal charges against the former president.

There's a message buried in John Durham's latest indictment — and it isn't pretty

Last week, Special Counsel John Durham secured an indictment against an obscure cyber-lawyer and Democratic insider named Michael Sussmann for allegedly lying to the FBI about who his clients were when he relayed a tip about possible digital communication between the Trump Organization and Russia. Durham was appointed by Donald Trump to delve into the origins of the Trump/Russia investigation. Sussmann's indictment appears to be the culmination of that probe, which has already dragged on for more than two years.

A grand jury only hears the prosecution's side of the story. Hence the truism that a grand jury will indict a ham sandwich. With the five-year statute of limitations running out, Durham sought to indict while the indicting was good. At least now he can say he got a Clinton lawyer. This means a lot to the QAnon base, but it won't mean much to a jury.

Sussmann is charged with lying to FBI general counsel Jim Baker in a one-on-one meeting during the dying weeks of the 2016 presidential campaign. Baker didn't take notes. One of his underlings later took notes on Baker's recollection of the conversation. Those notes say that Sussmann wasn't acting on behalf of any client, but the next words are "works for the Democratic National Committee and the Clinton Foundation." So Baker knew that Sussmann was coming to him from the beating heart of the Democratic establishment. It's not like he was pretending to be some guy off the street with a bunch of white papers about the Trump Organization and Alpha Bank. Such an act wouldn't have been very convincing to Baker, who took the meeting with Sussmann on the basis of their long-term professional acquaintance.

The whole case hangs on whether Baker correctly understood and accurately remembered what Sussmann told him. Sussmann denies that he lied to Baker, and we already know that Baker's memory of that exchange is tenuous. Baker testified in 2018 that he didn't remember whether Sussmann said he was there on behalf of any client. The standard in a criminal case is proof beyond a reasonable doubt, and here's reasonable doubt staring us in the face: The only two people who were at the meeting disagree about what was said, and one of them has already testified under oath that he doesn't remember. This case is so flimsy that it raises serious ethical questions about why Durham is bringing it at all.

In any case, lying to the FBI would only be a crime if the lie were material to the investigation. A material lie is a claim that would tend to influence the course of an investigation. But there's no evidence that the FBI would have done anything differently if they'd known that Sussmann was representing the Clinton campaign and some tech executive, as opposed to the DNC and the Clinton Foundation. At least, one would hope the FBI wouldn't have acted any differently. If the government is implying that the FBI would have blown off a perfectly good tip because it came from someone in the Clinton camp, that's a much bigger problem.

You might wonder why Durham bothered to seek an indictment for a case that's likely to self-destruct in a courtroom. No doubt, he felt pressure to justify the existence of his probe by delivering an indictment of a senior figure from ClintonLand. This prosecution also sends a strong "stop snitching" message: Don't give tips to the FBI about a Republican presidential campaign's possible misdeeds because you'll be the one facing federal charges.

The indictment is also an excuse to air details about the Clinton Camp's rather tame opposition research efforts. These details feed Trumpland's narrative that Obama, the Democrats, and Big Tech spied on him in 2016. This indictment has nothing to do with justice. It's all about feeding Trump's "stabbed in the back" narrative.

Why legal experts are so disturbed by a Trump lawyer's 6-point plan to overturn the 2020 election

A new CNN report on Monday revealed a memo from a lawyer working with former President Donald Trump that detailed a plan to overturn his loss to Joe Biden on Jan. 6. The report reveals findings from the new book, "Peril," by reporters Bob Woodward and Robert Costa.

It included a copy of the memo from conservative law professor John Eastman, showing a six-point plan to leverage then-Vice President Mike Pence's role as the president of the Senate to control Congress's vote counting and throw out the votes of seven states.

This would leave Trump in the lead with 232 Electoral College votes over Biden's 228. Then, according to Eastman, Democrats would let out "howls." (The whole memo shows open contempt for Democrats.) But if they object, he argued, Pence could declare the election inconclusive, at which point it would move into the House. And because Republicans control a majority of the House delegations, they could select Trump to carry out a second term.

"The main thing here is that Pence should do this without asking for permission – either from a vote of the joint session [of Congress] or from the Court," the memo said. "The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind."

Pence, of course, ultimately disagreed with these arguments and refused Trump's pleas to carry out the plan. And despite the insurrection carried out by Trump's followers on the Capitol that day, Pence fulfilled his role as expected, and Congress counted all the Electoral Votes as they were actually awarded, affirming Biden as the winner.

But even though the plan failed, the document remains a disturbing record of the time. It's impossible to know what would have happened if Pence had tried to go along with the plan — there might've been outrage and chaos in the streets, just as there were outbursts of celebration when Biden was declared the winner in November 2020. But if the vice president could just throw out the votes of states he didn't like, it would indisputably be the end of democracy in the United States.

Many legal experts found the document chilling, deeply disturbing, and absurd.

"This 'plan' is laughable, but we shouldn't laugh," said conservative lawyer David French. "If carried out, it would have led to the country's greatest political crisis since April 1861. And Eastman was no mere internet crank. He was a law professor and close to POTUS in the final days."

Steve Vladeck, a law professor at the University of Texas, agreed: "This memo is horrifying. As is the fact that it was written by a (former) law professor. As is the reporting that Pence agonized over the matter. As is so much else about how close we came to a coup (fine — an autogolpe) on 1/6. As is how little we're doing to respond to it."

Asha Rangappa, who teaches at Yale Law School, called the memo a "sinister plan" that would let "Trump to unconstitutionally grab and hold on to power." She added: "Note, by the way, that he's pretty confident the R's would go along with it until then end."

However, the CNN report notes that GOP Sen. Mike Lee of Utah, was a staunch opponent of the plan when it was presented to him.

"It was a dress rehearsal," said Rick Hasen, a prominent expert in election law. "Here's how to do the coup next time, with more loyalists in key places." Hasen argued that there are various ways lawmakers could strengthen our elections against such attempts at subversion, including reform of the Electoral Count Act.

'Stunning': Justice Sotomayor writes a furious dissent

Supreme Court Justice Sonia Sotomayor issued a clearly furious dissent late Wednesday night to the majority's order allowing a Texas law banning abortions after six weeks of pregnancy to stay in force.

"The Court's order is stunning," Sotomayor wrote. "Because the Court's failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent."

She left out the traditional word "respectfully" before "dissent" — a telltale sign that a justice is livid.

The order came in response to a challenge, brought by abortion providers among others, against a Texas law that had been making its way through the lower courts. It had been set to go into effect on Sept. 1, prompting urgent demands that the Supreme Court intervene to stall its implementation until the court process reaches its natural conclusion. Usually, restrictive abortion laws are paused, in part because the existing judicial precedent is so clear that they are unconstitutional.

But the Texas law is unique, since instead of issuing to the state the power to block abortions, it lets regular citizens bring lawsuits against anyone who provides an abortion or "aids and abets" an abortion in the state. The citizen can be awarded $10,000 through such a suit. In an unsigned order, five of the court's conservatives said that this unprecedented feature of the law introduces enough uncertainty about its legal status to undermine the case for issuing an injunction at this time.

But Chief Justice John Roberts, along with the court's three liberal justices, dissented. Sotomayor's dissent was the most impassioned.

"Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State's enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State's own invention," she wrote.

She noted that the law "prohibits care for at least 85% of Texas abortion patients and will force many abortion clinics to close," according to the plaintiffs. Allowing it to stand clearly violates Supreme Court precedent as established in Roe v. Wade and Planned Parenthood v. Casey, which upheld the right to access abortions. And she noted that no one even tries to argue that the Texas law is constitutional. Instead, Texas lawmakers tried to "circumvent" the Constitution by outsourcing enforcement of the law.

"In effect, the Texas Legislature has deputized the State's citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors' medical procedures," Sotomayor explained. "Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas."

The court's majority, she said, is rewarding Texas for its "gambit."

"This is untenable," she wrote. "It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry. ... [The] Court has rewarded the State's effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court's precedents, through procedural entanglements of the State's own creation. The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law."

Justice Elena Kagan also wrote a dissent, though "respectfully," criticizing the majority for abusing the "shadow docket" — the orders it issues outside of the usual lengthy procedures of briefings, oral arguments, and detailed opinions.

"[The] majority's decision is emblematic of too much of this Court's shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend," she wrote.

Matt Gaetz claimed he was a victim of an 'extortion' plot — but new DOJ charges tell a different story

A new grand jury indictment released on Tuesday revealed new details surrounding the complex and sordid case of Florida Republican Rep. Matt Gaetz.

The grand jury charged Florida man Stephen Alford, 62, of attempting to commit wire fraud and conceal evidence. Previous reporting had found that there was a federal investigation into a scheme by Alford and others to ask Gaetz's father, Don Gaetz, for $25 million to fund a rescue mission in Iran.

Rep. Gaetz had claimed that this request was part of an "extortion" attempt related to the investigation into allegations that he has been involved in child sex trafficking, corruption and other crimes. An associate of his has already agreed to plead guilty to these charges, though Gaetz denies them. When the investigation into his conduct first emerged, Gaetz tried to distract from the scandal by pointing to the "extortion" tied to Alford.

He tried to argue that the investigation of him was driven by duplicitous agents out to get him. But it turns out that the supposed "extortion" attempt wasn't quite that — at least insofar as the Justice Department sees it.

Rep. Gaetz's argument was that the plot sought to use the investigation to extort his father out of money. What the indictment indicates, however, is that the plot wasn't about extortion, just fraud. It says Alford falsely promised he could get a presidential pardon for Gaetz in exchange for money, and he used interstate wires to do it.

When I previously wrote about Gaetz's extortion allegations in April, I argued that they were not supported by the public evidence. For example, one document obtained by the Washington Examiner said that the plan was that after the Iran rescue attempt, the team will "strongly advocate that President Biden issue a Presidential Pardon, or instruct the Department of Justice to terminate any and all investigations involving Congressman Gaetz." As I argued at the time, that doesn't look like extortion. That just looks like a silly and obviously hollow promise — there's no chance President Biden would pardon Gaetz for the allegations against him or intervene in a DOJ probe to help him.

The new indictment alleges that Alford made more than hollow promises, but demonstrably false claims in an effort to obtain Gaetz family money. It claims that Alford falsely communicated to Gaetz's father (described as "D.G." in the indictment) that Biden has said he will "strongly consider" pardoning Rep. Gaetz (called "Family Member A) or ending the investigations into him. Alford also reportedly said he "will get that pardon" and that he could "guarantee" no prison time.

It also says Alford attempted to destroy or conceal evidence on an iPhone in the course of the investigation.

It's not clear how strong a case this really is against Alford. It certainly seems like a hare-brained scheme, but it's not against the law to propose a terrible idea to someone. It is a crime to lie to them in order to get their money, but Alford may argue that he was just speaking hyperbolically about his hopes for the plan rather than defrauding anyone. It may be hard to judge the allegations without additional context.

Though it probably doesn't help Alford's case that, according to the Washington Post, he has already been convicted of local and federal fraud crimes.

But what does seem clear is that — unless the DOJ comes out with another indictment — investigators didn't find substantial evidence of extortion. That's important because it undercuts the reason Gaetz was so interested in drawing attention to the Alford scheme to begin with. If the charges were being used to extort the Gaetz family, it may be reason to believe that the investigation isn't on the level and the congressman is being unfairly targeted. But that's not what the indictment suggests. Instead, it suggests that a serious investigation of Gaetz was somehow discovered by a man with a ludicrous idea, creating a spectacular but ultimately inconsequential sideshow.

Former federal prosecutor says Kevin McCarthy's 'threatening' response to Jan. 6 committee could be criminal

Republican House Minority Leader Kevin McCarthy drew criticism on Tuesday after he issued a statement in an apparent attempt to hinder the Jan. 6 committee's ongoing investigation. Some even argued McCarthy's broadside may constitute criminal obstruction of justice.

The House select committee pursuing the case sent requests this week to social media outlets and telecommunications companies, asking them to preserve records that might be of interest to the investigation. ABC News reported:

While the requests do not single out any lawmakers or members of the Trump family by name, the committee is focusing its inquiry on Republicans closely associated with the 'Stop the Steal' effort and who spoke at the rally on the morning of Jan. 6, according to a committee source.

The committee is also interested in the records of Ivanka Trump, who worked in the West Wing, and Donald Trump Jr. and Eric Trump, who worked on their father's reelection bid.

This move apparently spooked McCarthy, prompting him on Tuesday to push back in a statement:

Adam Schiff, Bennie Thompson, and Nancy Pelosi's attempts to strong-arm private companies to turn over individuals' private data would put every American with a phone or computer in the crosshairs of a surveillance state run by Democrat politicians. If these companies comply with the Democrat order to turn over private information, they are in violation of federal law and subject to losing their ability to operate in the United States. If companies still choose to violate federal law, a Republican majority will not forget and will stand with Americans to hold them fully accountable under the law.

From the start, McCarthy is over his skis. He accused the Democrats of "attempts to strong-arm private companies to turn over individuals' private data," but the committee's preservation request doesn't yet rise to that level. And it's not clear what " federal law" the committee's request would violate.

But worse than misstating the facts, McCarthy may be improperly interfering in the investigation. Ken White, a former federal prosecutor and legal analyst who is typically restrained in his application of federal law, argued on Twitter that there's a decent, if not decisive, case that McCarthy's threat is criminal.

"This may not be criminal, but it is a colorable law school exam question for obstruction of justice, worth the analysis," White wrote. "In effect [McCarthy] is threatening to use future unspecified legislation to punish witnesses for responding to legal process. I could convince a jury he's acting with the required corrupt mental state. There are other complications."

He linked to the federal obstruction of justice statute in the U.S. criminal code for reference.

"Now, maybe McCarthy genuinely believes the requests for docs are unlawful. There are remedies for that -- like suing and seeking injunctive relief, a protective order preventing compliance. You know, the rule of law. What you do if you have a legal argument," he continued. "By contrast, 'we think these official demands from Congress are invalid and if you abide by them we will use majority control of Congress to punish you' sounds like a good example of 'corruptly' under the statute to me."

Glenn Kirschner, another former federal prosecutor who tends to be more enthusiastic about applying criminal statutes to novel situations, agreed:



It's nevertheless extremely unlikely that the Justice Department under Attorney General Merrick Garland would pursue this case. He's shown a clear hesitancy to act in any way that might be perceived as overly partisan, and it's hard to imagine he would stick his neck out on a relatively novel case that targets the House minority leader.

However, it's notable that McCarthy is skating so close to the legal line, if not crossing it. Legal expert Elizabeth de la Vega argued it suggested a guilty conscience on his part:


Ron DeSantis-cited article to oppose mask-wearing for kids falls apart under scrutiny

As Florida has sunk ever-deeper into its third major wave of Covid-19, Republican Gov. Ron DeSantis has dug in his heels on his relatively hands-off approach to the virus, which many say has allowed it to spiral out of control.

Hospitalizations in the state have reached a recent peak of around 17,000, straining local resources. Average daily deaths from the virus recently approached 250, significantly above the worst days of the previous waves. With the spread uncontrolled, many are nervously awaiting the end of the summer and the start of the school year, when millions of children will attend schools packed with classmates, all breathing the same air.

But DeSantis has opposed one of the most seemingly common-sense measures to help reduce the spread of the virus among kids: school mask mandates. He's gone so far as to threaten school district funding if they disobey him, and he doesn't seem deterred by the mass outbreaks and quarantines already affecting thousands of Florida students. (On Friday, a judge ruled against the DeSantis policy.)

When asked about his policy this week, he lashed out at the press for its advocacy of masks for kids — which also happens to be what the Centers for Disease Control and Prevention recommends. To defend his position, he cited a recently published article.

"The evidence doesn't support it," he said. "There's a great article, actually in New York Magazine of all places, that went through this 3,000 words, very thorough, view of all the evidence and lack of evidence."

I was intrigued by DeSantis's citation, having not seen the article. So I decided to track it down and see what kind of case it made. Unfortunately, for DeSantis, it's a compellingly written but ultimately unpersuasive argument — one he was surely too willing to accept rather than actually scrutinize.

The headline is modest enough, claiming simply that "The Science of Masking Kids is Uncertain." Indeed, much of the science around the virus remains uncertain. But the piece, written by writer David Zweig, is really a polemic against having kids wearing masks, strongly suggesting that there's no evidence to support their use and that there's significant risk of harm from using them.

He wrote vaguely about Europeans being less inclined have students wear masks, and said "there's no evidence of more outbreaks in schools in those countries relative to schools in the U.S., where the solid majority of kids wore masks for an entire academic year and will continue to do so for the foreseeable future." But he doesn't actually provide any figures or detailed comparison of these cases, so this really isn't much to go on. He also pointed out that the World Health Organization is much less enthused about students wearing masks than the CDC is — though he neglected to mention that WHO was significantly behind the curve on recognizing the importance of masks generally for reducing the spread of the coronavirus.

The bulk of Zweig's argument actually relies on evidence from the CDC. He argued that one of its own studies of COVID-19 spread in Georgia elementary schools last fall, which he called "both ambitious and groundbreaking," actually shows that mask mandates did not "have a statistically significant benefit." He adds: "In other words, these measures could not be said to be effective."

He essentially accused the CDC of covering up its own finding, though he doesn't explain why it would do that. In fact, it's Zweig who is hiding the ball.

You wouldn't know it from reading his article, but the study Zweig cites actually found that the schools it studied with mask mandates for students had 21 percent less spread of the virus than in schools where masking was optional. This amount was comparable to the study's primary findings, which was that COVID-19 incidence was 37 percent lower in schools requiring masking for teachers and 39 percent lower in schools that improved ventilation.

It is true, as Zweig wrote, that the study's authors concluded the finding about student mask mandates wasn't statistically significant. But he slyly suggests this was a finding that the masks don't make much of a difference for kids. That's not so. It's completely possible mask mandates reduced the incidence of Covid by around 20 percent — a significant effect, to be sure — but the study itself wasn't able to make this causal claim.

Here's how the study itself actually addresses the finding:

The 21% lower incidence in schools that required mask use among students was not statistically significant compared with schools where mask use was optional. This finding might be attributed to higher effectiveness of masks among adults, who are at higher risk for SARS-CoV-2 infection but might also result from differences in mask-wearing behavior among students in schools with optional requirements. Mask use requirements were limited in this sample; 65.1% of schools required teacher and staff member mask use and approximately one half (51.5%) required student mask use. Because universal and correct use of masks can reduce SARS-CoV-2 transmission (6) and is a relatively low-cost and easily implemented strategy, findings in this report suggest universal and correct mask use is an important COVID-19 prevention strategy in schools as part of a multicomponent approach.

It's understandable that some people confuse "not statistically significant" effects with "virtually nonexistent" effects. But it's not helpful for a writer making Zweig's case to ignore the magnitude of the finding.

"One of the biggest problems with interpreting findings that are not 'statistically significant' is distinguishing between the lack of a true association versus missing a true association due to inadequate power or due to other sources of epidemiologic bias," Brandon Guthrie, a professor of epidemiology and global health at the University of Washington, wrote to me in an email. "A 21% reduction in risk, if it were true, would be meaningful, and therefore I would conclude that the study was inadequately powered to answer this question."

We should also be careful to distinguish between the effects of students wearing masks and the the effects of students being mandated to wear masks. It could be possible that schools without masking mandates nevertheless have a high rate of mask-wearing. It might then be hard to distinguish the effect of the mask mandate in a study, but it would certainly be wrong to conclude from this that the masks themselves were having no positive effect.

Zweig emphasizes that he looked for other comparable studies, directly comparing schools without mask mandates to those without, but he came up empty. He thinks this is telling, but he's really asking for too much.

"The reality is that we don't have randomized trial evidence that compares mask usage for prevention of the COVID-19 virus to non-usage, holding everything else constant, in real-world settings at a population level," Guthrie explained to me. "Such a study would likely be impossible to conduct ethically, [and] even if it were ethical, would be nearly impossible to conduct practically. In the absence of that evidence, we have to rely on interpreting multiple lines of indirect evidence."

There's plenty of evidence that masks reduce the spread of Covid-19 — indeed, the study at the center of Zweig's argument offers strong support for the effect of masking adults at schools. If masks reduce the spread of the virus among adults, why shouldn't we expect that they'll do the same for kids?

Zweig does have a response to this argument: "While masks offer some protection for adults in many environments, as the adage in pediatrics goes, children are not little adults. Medicine is littered with examples of adult interventions that don't translate to children."

This point is worth considering, but it's less compelling than Zweig suggests. Masks reduce the spread of Covid because it's a respiratory illness that transmits via exhaled droplets. Masks are barriers inhibiting that process. It's hard to give a principled reason to think a simple method of interfering in the basic avenue of transmission would be effective for adults but not for children. It's not as if Covid infects children through the ear canal rather than the airway.

Zweig indicates that the physiological differences between children and adults may explain why the CDC study of Georgia schools didn't find a statistically significant benefit of masking students, though it did find one for adults. But as I noted, the study did find a large association between student mask-wearing and reduced viral spread, even if a causal inference couldn't be made. The fact that masking was shown to reduce spread from adults should actually heighten our credence that the reduction in spread for students under a mask mandate was a result of the intervention. Indeed, that's essentially the argument the study's authors made.

It is true that studies seem to show that children spread Covid less readily than adults do. They also get sick less and have a much lower fatality rate. And masks may not work as well on children for behavioral reasons — for example, they may take them off or adjust them more frequently, or they may not be comfortable wearing tighter-fitting masks that better reduce transmission. These may make the impact of mask mandates for kids less impactful — but that's no reason to think the effect is negligible.

Even while Zweig discounts the evidence in favor of masks, he exaggerates the evidence on the downsides. At one point, hewrote:

"There are very good reasons that the World Health Organization has repeatedly affirmed their guidance for children under 6 to not wear masks," said a pediatrician who has both state and national leadership roles in the AAP but who wished to remain anonymous because they did not want to jeopardize their roles in the organization. "Reading faces is critical for social emotional learning. And all children are actively learning language the first five years of life, for which seeing faces is foundational," the pediatrician said.

But while seeing faces in the first five years of life may indeed be quite important, that's not really relevant to whether the individual kid is masked — what matters is whether they're seeing masked faces. And most of the first five years of a child's life aren't in traditional k-12 schools. Thankfully, in much of their time at home, in outdoor settings, and in smaller groups, quite young kids should have plenty of opportunities to interact with people with uncovered faces, even during this pandemic. And it's definitely good for teachers to find multiple opportunities for students to interact maskless throughout the day outdoors, where the risk from the virus is particularly low. And teachers should strive to accomodate any students who may, for whatever reason, have a particularly difficult time wearing masks.

Everyone should agree that we want the coming school year to proceed as smoothly as possible and with as few virus-related interruptions as possible. That means using every tool we have to reduce outbreaks of Covid, including vaccination for those who are eligble, increased ventiliation when possible, and, indeed, masking in large groups whenever it's feasible.

And of course, a big factor in any discussions about mitigating Covid spread in the fall is the Delta variant. Most of the studies we've seen on Covid examined previous variants of the virus. And the major difference with the Delta variant is that it spreads even more easily than the initial form of the virus.

Zwieg dismisses concerns about Delta, writing:

A common argument right now is that the emergence of the Delta variant changes everything. Currently, some regions of the U.S. are seeing a surge of infections and hospitalizations among young people. But the numbers coming out of Britain continue to suggest that Delta is not more virulent — that is, it does not cause more severe illness on an individual basis to unvaccinated people — despite being more contagious. A pediatric immunologist at a major university hospital who was not authorized to speak publicly said, "It is not biologically plausible that the same variant somehow is more dangerous for kids in the U.S. than it is in the U.K."
More broadly, Schecter-Perkins said, "I don't think that Delta changes the calculus because it still seems clear that it doesn't cause more severe disease, so it still doesn't change the fundamental question of 'What are we trying to achieve by masking kids when they are still extremely unlikely to suffer from severe illness or death if infected?' And the adults in their lives have the opportunity to be vaccinated and also protected so we don't need to worry about transmission." The pediatric immunologist said, "Even with a new variant, the onus is on those who recommend masking kids to robustly demonstrate a meaningful benefit, especially when the pre-Delta study of the Georgia schools did not find one, and when there are obvious socio-emotional and educational harms from masking children for this unprecedented duration of time."

But increased trasmissibility is precisely the concern about Delta, and it could have a major impact on viral spread at school. More kids getting Covid will certainly mean more kids getting severely ill and dying. Those numbers may, nevertheless, remain relatively quite small. But the virus's increased transmissibility may turn unmasked schoolchildren into signficant vectors of viral spread in the community. And you can't dismiss this concern because the adults in the community have an option to be vaccinated. Uncontrolled spread is devastating for a community, for the vaccinated, the unvaccinated, and immunologically compromised. Every part of the community needs to be a part of the effort to keep the virus under control.

Further, Zweig cites one of his sources arguing once again that there's "obvious socio-emotional and educational harms from maksing children," but he doesn't provide any signficant evidence for this claim — certainly none that meets the standard of evidence he requires for claims about school mask mandates.

Meanwhile, many experts argue that the new forms of the virus mean we should be as vigilant as ever.

"The presence of the more transmissible [Delta] variant is a strong reason to emphasize basic strategies like universal mask usage in schools, as well as in other public indoor spaces," Guthrie told me. "Masks, while not always the most enjoyable experience, are not particularly inconvenient in most settings, and when combined with vaccination and other minimally disruptive measures, they are an important part of making classrooms safe."

A recent CDC study highlights the danger. It found that an unvaccinated California teacher brought the virus into her classroom while symptomatic, and despite masking rules, she read aloud to the students with her face uncovered. The kids were supposed to be masks, and the students reportedly said they complied with this rule at a high rate. Nevertheless, fifty percent of the students were infected, and some of them brought the virus home to their parents and siblings. A nearby classroom of 18 students also had six cases; one of the students had recently had a sleepover with two other students, and all three ended up with Covid. There were also four other student cases detected in other grades, each of whom had siblings in the the class with the initial outbreak. No other infections were reported in those classrooms, potentially because the student masking prevented further spread.

Of course, the biggest lesson here is that teachers and anyone else who is eligible should be vaccinated, and people with symptoms of Covid should self-isolate. But it's also clear from this incident that the virus can spread quickly within schools, and it can make it's way from there out into the wider community. The students in the classroom were reportedly masked, distanced, had open windows and doors for ventiliation, and had an air filter at the front of the room. Without these strategies, the outbreak might have been worse. And it's hard to be confident that any one of the strategies is making a huge difference on its own or is going to be a silver bullet — but we shouldn't be quick to abandon any strategy that we think has a good chance of providing substantial protection.

Indeed, all this reflects the lesson of one other study Zweig cites in Science Magazine, based on survey data, which he did admit is suggestive of a positive impact from mask mandates.

"We found that when seven or more mitigation measures were in place, the positive association between in-person schooling and COVID-19 outcomes disappeared," it said. "Among those reporting seven or more mitigation measures, >80% reported student and teacher mask mandates, restricted entry, extra space between desks, and no supply sharing, and >50% reported student cohorting, reduced class size, and daily symptom screening."

On the other hand, we shouldn't be doctrinaire about any of this. It's possible that on the whole, Delta will spread more easily among kids than previous variants, making masks even more important in these settings. But it's also possible that precisely because Delta spreads so easily, it doesn't actually do much to reduce the spread when students are mixing among themselves for many hours a day. We should pay close attention to what the emerging evidence shows and let it guide our actions moving forward. The Science Magazine study, for example, found that desk shields are unlikely to be helpful in schools and may actually increase the spread of the virus. They may be worth abandoning altogether.

But the fact is that public health officials are trying hard to evaluate the evidence. Contrary to Zweig's implications, there's little indication they are hiding their findings. They're making tricky judgments in an uncertain environment when we may not always be able to get th exact kind of evidence that we would most like to see. And for now, there's ample evidence to ask the kids going to school this fall to mask up when the risk of viral spread is significant, for themselves and for the good of the community.

The Supreme Court launches a 'political torpedo' right at the Biden administration

On Tuesday night, the Supreme Court announced a consequential decision that amounted to an aggressive assertion of judicial authority against President Joe Biden.

In a four-sentence order, the justices left in place a lower court's injunction preventing the Biden administration from ending Donald Trump's "Remain in Mexico" policy, which left many asylum-seekers unable to enter the United States as their cases proceed through the long and arduous process. Essentially, the court is saying Biden has to continue to Trump's policy because he didn't end it in the right way. District Judge Matthew Kacsmaryk, who was appointed by Trump, had previously ordered Biden to continue the policy on the grounds that the decision to reverse it was "arbitrary and capricious." The Supreme Court has upheld that procedural move, which is now expected to stay in place as the litigation proceeds.

The initial ruling and the injunction were highly criticized when they came down, with many critics arguing that they represented extreme overreach by a conservative judge trying to undermine a politically opposed administration. Vox's Ian Millhiser said Judge Kacsmaryk didn't even understand the law he referenced:

Judge Matthew Kacsmaryk's opinion in Texas was wrong for many reasons, including that he completely misread federal immigration law. Kacsmaryk wrote that a 1996 federal law only gives "the government two options vis-à-vis aliens seeking asylum: (1) mandatory detention; or (2) return to a contiguous territory." Federal immigration law actually gives immigration officials several options, including granting "parole into the United States" to individual immigrants or releasing the immigrant on "bond of at least $1,500." ...
The most obvious stakes in this case are whether thousands of migrants will be forced to live in harrowing conditions — without "stable access to housing, income, and safety," according to Homeland Security Secretary Alejandro Mayorkas — because of an egregious misreading of federal law.
...
Remain in Mexico was implemented in early 2019, and effectively suspended in March 2020, because the government imposed stricter, temporary border restrictions in order to reduce the spread of Covid-19. Thus, Kacsmaryk's opinion rests on the improbable claim that a federal law enacted in 1996 requires the government to implement a policy that was only in effect for 14 months, and that wasn't implemented until nearly a quarter-century after the 1996 law took effect.

Now, the Supreme Court's conservatives have said that the judge's injunction will remain in place, fulfilling Milhiser's fears. All three liberal justices on the court dissented from the decision, though there was no written opinion of the court nor any dissents."

The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious," the order said. It cited the 2020 decision in the case of Department of Homeland Security v. Regents of the University of California, in which the court ruled that the Trump administration couldn't end the DACA program that protected undocumented immigrants who had come to the U.S. as children from deportation. Chief Justice John Roberts had been the lone conservative in the majority in that ruling.

"Absolute insanity. SCOTUS' conservative majority repeatedly cleared away lower court injunctions so that Trump could implement his immigration agenda. Now it lets a single district court judge dictate foreign policy for the Biden administration. This is beyond outrageous," said Slate's Mark Joseph stern.

Many critics echoed the point that the court was generally deferential to the Trump administration on immigration and foreign policy.

It left in place Trump's ban on migrants from Muslim countries, despite clear evidence that it was inspired by racist animus.In this case, the Justice Department argued that the Remain in Mexico policy involves the president's engagement with foreign countries, which the court has generally concluded should be largely protected from judicial interference. But now the right-wing majority has abandoned those concerns.

Stern noted that the court's demands of the executive branch may not even be possible: "I have no idea how the Biden administration can negotiate a revival of Remain in Mexico immediately. No one does. It may be impossible. Set aside the immense suffering that the conservative justices just inflicted on migrants. From a geopolitical standpoint, this is demented."

"This was the first test of whether a conservative Supreme Court majority would follow the same rules it did under Trump when it comes to immigration and the President—and they have failed the test. This is a political torpedo aimed directly at the Biden administration," said Aaron Reichlin-Melnick, a lawyer at the American Immigration Council. "The lower courts got dozens of facts wrong, wildly misstated the law, and ordered the Executive to torpedo delicate foreign relations—and the Supreme Court, which until Biden took office blocked nearly all immigration injunctions when requested by the DOJ, just let them do it."

He continued:

Mike Lindell's supposed bombshell about the 2020 election blows up in his face

My Pillow CEO Mike Lindell has been one of the most prominent public figures still passionately pushing the lie that former President Donald Trump won the 2020 election — and claiming that he can prove it. He even claimed Trump would be reinstated this month, a prediction he now disavows. His misinformation campaign came to a head this week as he held a so-called "cyber symposium" in Sioux Falls, South Dakota, to make the case that President Joe Biden was illegitimately elected. But as the shambolic event stretched into its second day, the keystone of his repeatedly debunked argument turned out — unsurprisingly — to be a complete dud.

Lindell claimed that he would provide data conclusively showing that China rigged the vote counts to install Biden as president. But The Washington Times, a conservative news outlet, reported Wednesday evening that the "expert" who was supposed to assess this evidence admitted it didn't hold up to scrutiny.

It explained:

Mr. Lindell said he had 37 terabytes of "irrefutable" evidence that hackers, who he said were backed by China, broke into election systems and switched votes in favor of President Biden. The proof, he said, is visible in intercepted network data or "packet captures" that were collected by hackers and could be unencrypted to reveal that a cyberattack occurred and that votes were switched.
But Mr. Lindell's lead cyber expert, Josh Merritt, told The Washington Times that packet captures are unrecoverable in the data and that the data, as provided, cannot prove a cyberincursion by China.
"So our team said, we're not going to say that this is legitimate if we don't have confidence in the information," Mr. Merritt said on Wednesday, the second day of the symposium.

Brad Heath, a reporter who closely followed the post-election litigation, noted:


Merrit was previously the subject of mockery after Sidney Powell misrepresented him in her post-election lawsuits that sought to overturn the result. The Washington Post reported in December 2020:

Powell describes Spyder in court filings as a former "Military Intelligence expert," and his testimony is offered to support one of her central claims. In a declaration filed in four states, Spyder alleges that publicly available data about server traffic shows that voting systems in the United States were "certainly compromised by rogue actors, such as Iran and China."
Spyder, it turns out, is Joshua Merritt, a 43-year-old information technology consultant in the Dallas area. Merritt confirmed his role as Powell's secret witness in phone interviews this week with The Washington Post.
Records show that Merritt is an Army veteran and that he enrolled in a training program at the 305th Military Intelligence Battalion, the unit he cites in his declaration. But he never completed the entry-level training course, according to Meredith Mingledorff, a spokeswoman for the U.S. Army Intelligence Center of Excellence, which includes the battalion.
"He kept washing out of courses," said Mingledorff, citing his education records. "He's not an intelligence analyst."
In an interview, Merritt maintained that he graduated from the intelligence training program. But even by his own account, he was only a trainee with the 305th, at Fort Huachuca in Arizona, and for just seven months more than 15 years ago.
...
Merritt acknowledged that the declaration's description of his work as an "electronic intelligence analyst under 305th Military Intelligence" is misleading. He said it should have made clear that his time in the 305th was as a student, not as a working intelligence expert.

Zachary Petrizzo, a reporter for Salon, noted that the crowd at the symposium was thinning out on its second day, apparently from lack of enthusiasm about the content.


Even Steve Bannon, a close ally of Lindell's, was critical on Wednesday about the symposium's lack of evidence.

"You've laid a theory of the case out here that's very powerful, but in laying that case out, you've got to bring the receipts," he said.


Steve Bannon slams Mike Lindell's 'cyber symposium' youtu.be


To top off the rest of Lindell's terrible day, the judge overseeing the defamation case against him and other defendants brought by the Dominion voting maching company issued a ruling allowing the lawsuit to proceed and rejecting his motion to dismiss.