No. 155, Original
IN THE Supreme Court of the United StatesSTATE OF TEXAS, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, et al., Defendants.
On Motion for Leave to File a Bill of Complaint
Motion for Leave to File Brief Amicus Curiae and Brief Amicus Curiae of U.S. Representative Mike Johnson and 105 Other Members of the U.S. House of Representatives in Support of Plaintiff’s Motion for Leave to File a Bill of Complaint and Motion for a Preliminary Injunctioniff,
v.
COMMONWEALTH OF PENNSYLVANIA, et al.,
Defendants.
____________________
On Motion for Leave to File a Bill of Complaint
____________________
Motion for Leave to File Brief Amicus Curiae
and Brief Amicus Curiae of
U.S. Representative Mike Johnson and
105 Other Members of the U.S. House of
Representatives in Support of
Plaintiff’s Motion for Leave to
File a Bill of Complaint and
Motion for a Preliminary Injunction
____________________
WILLIAM J. OLSON
JEREMIAH L. MORGAN
ROBERT J. OLSON
HERBERT W. TITUS
WILLIAM J. OLSON, P.C.
370 Maple Ave. W., Ste 4
Vienna, VA 22180
PHILLIP L. JAUREGUI*
JUDICIAL ACTION GROUP
1300 I Street, NW
Suite 400 E
Washington, DC 20005
(202) 216-9309
plj@judicialactiongroup.com
wjo@mindspring.com
Attorneys for Amici Curiae
*Counsel of Record December 10, 2020
════════════════════════════════════════
List of Amici CuriaeMike Johnson represents the Fourth Congressional District of Louisiana
Gary Palmer represents the Sixth Congressional District of Alabama
Steve Scalise represents the First Congressional District of Louisiana
Jim Jordan represents the Fourth Congressional District of Ohio
Ralph Abraham represents the Fifth Congressional District of Louisiana
Rick W. Allen represents the Twelfth Congressional District of Georgia
James R. Baird represents the Fourth Congressional District of Indiana
Jim Banks represents the Third Congressional District of Indiana
Jack Bergman represents the First Congressional District of Michigan
Andy Biggs represents the Fifth Congressional District of Arizona
Gus Bilirakis represents the Twelfth Congressional District of Florida
Dan Bishop represents the Ninth Congressional District of North Carolina
Mike Bost represents the Twelfth Congressional District of Illinois
Kevin Brady represents the Eighth Congressional District of Texas
Mo Brooks represents the Fifth Congressional District of Alabama
Ken Buck represents the Fourth Congressional District of Colorado
Ted Budd represents the Thirteenth Congressional District of North Carolina
Tim Burchett represents the Second Congressional District of Tennessee
Michael C. Burgess represents the Twenty-Sixth Congressional District of Texas
Bradley Byrne represents the First Congressional District of Alabama
Ken Calvert represents the Forty-Second Congressional District of California
Earl L. “Buddy” Carter represents the First Congressional District of Georgia
Ben Cline represents the Sixth Congressional District of Virginia
Michael Cloud represents the Twenty-Seventh Congressional District of Texas
Mike Conaway represents the Eleventh Congressional District of Texas
Rick Crawford represents the First Congressional District of Arkansas
Dan Crenshaw represents the Second Congressional District of Texas
Mario Diaz-Balart represents the Twenty-Fifth Congressional District of Florida
Jeff Duncan represents the Third Congressional District of South Carolina
Neal P. Dunn, M.D. represents the Second Congressional District of Florida
Tom Emmer represents the Sixth Congressional District of Minnesota
Ron Estes represents the Fourth Congressional District of Kansas
A. Drew Ferguson, IV represents the Third Congressional District of Georgia
Chuck Fleischmann represents the Third Congressional District of Tennessee
Bill Flores represents the Seventeenth Congressional District of Texas
Jeff Fortenberry represents the First Congressional District of Nebraska
Virginia Foxx represents the Fifth Congressional District of North Carolina
Russ Fulcher represents the First Congressional District of Idaho
Matt Gaetz represents the First Congressional District of Florida States
Greg Gianforte represents the At Large Congressional District of Montana
Bob Gibbs represents the Seventh Congressional District of Ohio
Louie Gohmert represents the First Congressional District of Texas
Lance Gooden represents the Fifth Congressional District of Texas
Sam Graves represents the Sixth Congressional District of Missouri
Mark Green represents the Seventh Congressional District of Tennessee
Michael Guest represents the Third Congressional District of Mississippi
Andy Harris, M.D. represents the First Congressional District of Maryland
Vicky Hartzler represents the Fourth Congressional District of Missouri
Kevin Hern represents the First Congressional District of Oklahoma
Clay Higgins represents the Third Congressional District of Louisiana
Trey Hollingsworth represents the Ninth Congressional District of Indiana
Richard Hudson represents the Eighth Congressional District of North Carolina
Bill Huizenga represents the Second Congressional District of Michigan
Bill Johnson represents the Sixth Congressional District of Ohio
John Joyce represents the Thirteenth Congressional District of Pennsylvania
Fred Keller represents the Twelfth Congressional District of Pennsylvania
Mike Kelly represents the Sixteenth Congressional District of Pennsylvania
Trent Kelly represents the First Congressional District of Mississippi States
Steve King represents the Fourth Congressional District of Iowa
David Kustoff represents the Eighth Congressional District of Tennessee
Darin LaHood represents the Eighteenth Congressional District of Illinois
Doug LaMalfa represents the First Congressional District of California
Doug Lamborn represents the Fifth Congressional District of Colorado
Robert E. Latta represents the Fifth Congressional District of Ohio
Debbie Lesko represents the Eighth Congressional District of Arizona
Blaine Leutkemeyer represents the Third Congressional District of Missouri
Kenny Marchant represents the Twenty-Fourth Congressional District of Texas
Roger Marshall, M.D. represents the First Congressional District of Kansas
Tom McClintock represents the Fourth Congressional District of California
Cathy McMorris Rogers represents the Fifth Congressional District of Washington
Dan Meuser represents the Ninth Congressional District of Pennsylvania
Carol D. Miller represents the Third Congressional District of West Virginia
John Moolenaar represents the Fourth Congressional District of Michigan
Alex X. Mooney represents the Second Congressional District of West Virginia
Markwayne Mullin represents the Second Congressional District of Oklahoma
Gregory Murphy, M.D. represents the Third Congressional District of North Carolina
Dan Newhouse represents the Fourth Congressional District of Washington
Ralph Norman represents the Fifth Congressional District of South Carolina
Scott Perry represents the Tenth Congressional District of Pennsylvania
Guy Reschenthaler represents the Fourteenth Congressional District of Pennsylvania
Tom Rice represents the Seventh Congressional District of South Carolina
John Rose represents the Sixth Congressional District of Tennessee
David Rouzer represents the Seventh Congressional District of North Carolina
John Rutherford represents the Fourth Congressional District of Florida
Austin Scott represents the Eighth Congressional District of Georgia
Mike Simpson represents the Second Congressional District of Idaho
Adrian Smith represents the Third Congressional District of Nebraska
Jason Smith represents the Eighth Congressional District of Missouri
Ross Spano represents the Fifteenth Congressional District of Florida
Elise Stefanik represents the Twenty-First Congressional District of New York
Glenn “GT” Thompson represents the Fifteenth Congressional District of Pennsylvania
Tom Tiffany represents the Seventh Congressional District of Wisconsin
William Timmons represents the Fourth Congressional District of South Carolina
Ann Wagner represents the Second Congressional District of Missouri
Tim Walberg represents the Seventh Congressional District of Michigan
Michael Waltz represents the Sixth Congressional District of Florida States
Randy Weber represents the Fourteenth Congressional District of Texas
Daniel Webster represents the Eleventh Congressional District of Florida
Brad Wenstrup represents the Second Congressional District of Ohio
Bruce Westerman represents the Fourth Congressional District of Arkansas
Roger Williams represents the Twenty-Fifth Congressional District of Texas
Joe Wilson represents the Second Congressional District of South Carolina
Rob Wittman represents the First Congressional District of Virginia Ron Wright represents the Sixth
Congressional District of Texas States House of Representatives.
Ted S. Yoho represents the Third Congressional District of Florida
Lee Zeldin represents the First Congressional District of New YorkAttorneys for Plaintiff
Ken Paxton
Counsel of Record Attorney General of Texas
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548kenneth.paxton@oag.texas.gov 512-936-1414
Party name: State of TexasL. Lin Wood Jr.
Counsel of Record P.O. Box 52584
Atlanta, GA 30355-0584lwood@linwoodlaw.com 4049833284
What happens when the intelligence community decides that Trump is too dangerous to be president?
A surge of public activism by former CIA personnel is one of the most unexpected developments of the Trump era
Two former CIA officers — both Democrats, both women, both liberal — were elected to Congress on November 6. Abigail Spanberger, former operations officer, was elected in Virginia’s 7th District. Elissa Slotkin, former analyst, won in Michigan’s 8th District. Both Spanberger and Slotkin incorporated their intelligence experience into their center-left platforms. Their victories tripled the number of CIA “formers” in Congress.
At the halfway point in Trump’s first term, these formers see themselves as a bulwark of an endangered democracy. The president and his supporters see a cabal of “deep state” radicals out to overturn the will of the people. With the appointment of Matthew Whitaker, an unqualified political operative, as Attorney General, Brennan said a “constitutional crisis” is fast approaching. The clash between a willfully ignorant commander in chief and a politicized intelligence community seems sure to deepen.
..I think the blatant disregard for the threat of foreign influence in our election and the demonization of the Intelligence Community was a turning point for a lot of us,” former branch chief Cindy Otis told me in an email. “. . . Critics can call me ‘The Deep State,’ but I joined the CIA under George W. Bush and the vast majority of people at CIA lean conservative on foreign policy/natsec [national security] issues.”
.. in the 1980s, former director Bush and a host of senior agency operatives joined the Iran-Contra conspiracy. They sought to subvert the Democratic majority in Congress that had banned covert intervention in Central America. The agency’s rank and file did not object. Indeed, many applauded when President Bush pardoned four CIA officials who had been indicted in the scandal.
..After the 9/11 attacks, the consensus in Langley that torture was a permissible, effective and necessary counterterrorism technique no doubt struck many intelligence officers as apolitical common sense. But, of course, adopting “extreme interrogation tactics” was a deeply political decision that President Bush embraced, and President Obama repudiated. The agency deferred to both commanders in chief.
.. The problem with Trump in the eyes of these CIA formers is almost pre-political. The president’s policy decisions matter less than his contempt for intelligence and the system that collects it... When we see things that are blatantly wrong, and the president is responsible, it is fair to speak out,” Bakos said in an interview. “If you’re silent, you’re part of the problem.”.. Former personnel know better than anyone that the CIA has a license to kill. The agency can spy, capture, bomb and assassinate. It can overthrow governments, foster (or smash) political movements, even re-organize entire societies, according to the inclinations of the president and his advisers.CIA operatives could trust both neoconservative George W. Bush and internationalist Barack Obama with that arsenal because they believed, whatever their politics, both presidents were rational actors. With Trump, they can have no such confidence.
Trump’s contempt for the intelligence profession, weaponized in his “deep state” conspiracy theories, has agency personnel feeling professionally vulnerable, perhaps for the first time. An irrational chief executive has shattered their apolitical pretensions and forced them to re-examine what their core beliefs require.
.. Larry Pfeiffer, former chief of staff to Hayden, told me, “Until now I’ve been mostly a Republican voter at the national level because Republicans shared my views on national security. For a lot of people inside the national security community, that is not necessarily the case anymore. The Republican Party under Trump has abandoned people like us.”
.. When Pfeiffer told me, “Who knows? I might have to vote for Elizabeth Warren, or Bernie Sanders in 2020,” he sounded amazed by the possibility but not averse to it. Two years of Trump can do that to a former spy.
The point is not that the CIA is getting more liberal, says John Prados, author of “The Ghosts of Langley,” a history of the agency. Rather, the election results show that the voting bloc that supports the president now skews even more to the hard right. “The migration of [the] political spectrum to the right makes the agency look more liberal than it is,” he said in an interview.
.. “I find it sad — and maybe a few other adjectives — that Brennan now gets a pass for some of [the] things he did as director, just because he’s combatting Trump,” Prados said.
.. “If Trump is going to carry out a secret war against Iran as he seems to want to do, who is our ally?” Prados asked. “Mossad [the Israeli intelligence service]? Who can work with Mossad? The CIA. If that is Trump’s Middle East agenda, the interests of current CIA people and the formers may diverge.”
.. “Trump is not only relying on lies and falsehoods in his public statements, but I have to believe he is pushing back on the realities that are brought to him. Imagine Gina Haspel goes to the White House with a briefer to talk about the latest intel on — fill in the blank:
- North Korea’s missile program.
- What China is doing to supplant America in Asia.
- Where Europe wants to go with NATO.
Does the president listen or care? Or even understand? We’re not in crisis on any one issue, but can we really say the government is functioning?”
.. Harrington expects the mistrust between the president and the intelligence community to grow in the next two years.
“No director of any federal agency can turn away the inquiries of the Democratic House,” Harrington said. “CIA people have to deal head on with the consequences of a president who is fundamentally not dealing with reality.”
If there’s one thing to be learned from talking to former CIA personnel, it’s the sense that the CIA system — powerful, stealthy, and dangerous — is blinking red about the latest news of an authoritarian leader in an unstable nation.
Michael Wolff’s Withering Portrait of President Donald Trump
. A chronicler of media, power, and wealth, Wolff is also willing to dish the dirt, as he demonstrated in a gossipy tome about Rupert Murdoch, which was published in 2008.
.. After that book came out, there was an inquest inside Murdoch’s News Corporation into who had granted Wolff access.
.. as Wolff noted in a foreword to the paperback edition of the book, Murdoch was the person primarily responsible for the access he gained. The press baron “not only was (mostly) a patient and convivial interviewee but also opened every door I asked him to open,” Wolff wrote.
.. His original idea, he says, was to write a fly-on-the-wall account of Trump’s first hundred days. “The president himself encouraged this idea. But given the many fiefdoms in the White House that came into open conflict from the first days of the administration, there seemed no one person able to make this happen. Equally, there was no one to say ‘Go away.’ Hence I became more a constant interloper than an invited guest.”
.. Still, the over-all portrait that Wolff draws of a dysfunctional, bitterly divided White House in the first six months of Trump’s Presidency, before the appointment of John Kelly as chief of staff and the subsequent firing of Bannon, has the whiff of authenticity about it—and it echoes news coverage at the time.
.. during one Oval Office meeting, Bannon called Ivanka “a fucking liar,” to which Trump responded,“I told you this is a tough town, baby.”
.. Equally plausible is Wolff’s portrait of Trump as a one-dimensional figure who had no conception that he could win the 2016 election; little clue what to do after he did emerge victorious from the campaign trail; and virtually no interest in, or aptitude for, acquiring the skills and information needed to fulfill the role of President. “Here was, arguably, the central issue of the Trump presidency,”
.. Some believed that for all practical purposes he was no more than semiliterate . . . . Some thought him dyslexic; certainly his comprehension was limited. Others concluded that he didn’t read because he didn’t have to, and that in fact this was one of his key attributes as a populist. He was postliterate—total television.
.. Trump often retires in the early evening to his bedroom, where he has three television screens, and interrupts his viewing only to converse by telephone with his friends and cronies, some of them fellow-billionaires.
.. unconfirmed new anecdotes, too, about Trump’s sexism and narcissism. In one meeting, Wolff says, the President referred to Hope Hicks, his communications director, as “a piece of tail.”
.. described Sally Yates
.. Trump is, ultimately, a self-fixated performer rather than a politician, and his primary goal is to monopolize public attention.
.. This depiction probably understates Trump’s devotion to making money, as well as his racism and nativism, both of which go back decades.
.. Donald McGahn, the White House counsel, were adamantly opposed to firing Comey. “McGahn tried to explain that in fact Comey himself was not running the Russia investigation, that without Comey the investigation would proceed anyway,”
.. Chris Christie and Rudolph Giuliani, who “encouraged him to take the view that the DOJ was resolved against him; it was all part of a holdover Obama plot.”
.. the concern of Charles Kushner, Jared’s father, “channeled through his son and daughter-in-law, that the Kushner family [business] dealings were getting wrapped up in the pursuit of Trump.”
.. Jared and Ivanka “encouraged him, arguing the once possibly charmable Comey was now a dangerous and uncontrollable player whose profit would inevitably be their loss.”
Jared and Ivanka were urging the president on, but even they did not know that the axe would shortly fall. Hope Hicks . . . didn’t know. Steven Bannon, however much he worried that the president might blow, didn’t know. His chief of staff didn’t know. And his press secretary didn’t know. The president, on the verge of starting a war with the FBI, the DOJ, and many in Congress, was going rogue.
.. Wolff was surely right to stress the momentousness of the decision to get rid of the “rat”— Trump’s term for Comey.
.. five months after Comey’s firing, Bannon was predicting the collapse of Trump’s Presidency.
.. In any event, there would certainly not be a second term, or even an attempt at one. ‘He’s not going to make it,’ said Bannon at the Breitbart Embassy. ‘He’s lost his stuff.’ ”
The Bannon Revolution
Bannon’s grand ambitions should inspire the same soul-deadening déjà vu, the existential exhaustion, with which Bill Murray’s weatherman greeted every morning in Punxsutawney, Penn. They should bring to mind both Friedrich Nietzsche’s idea of eternal recurrence and his warning that if you stare deep into the abyss, it stares into you.
.. What Bannon is promising is what the Tea Party actually delivered, in a past recent enough to still feel like the present: a dramatic ideological shake-up, an end to D.C. business-as-usual, and the elevation of new leaders with a sweeping vision for a new G.O.P.
.. The ideological shake-up took the form of paper promises, not successful legislation. The end to D.C. business-as-usual just created a new normal of brinkmanship and gridlock. And when the Tea Party’s leaders — Ted Cruz and Rand Paul, above all — reached out to claim their party’s presidential nomination, they found themselves steamrolled by a candidate who scorned all their limited-government ideas and offered, well, Trumpism instead.
.. when it comes to governance, Trumpism turns to have two fatal weaknesses:
- the dearth of Trumpists among elected Republicans, and
- the total policy incapacity of Trump himself.
So having failed in his appointed role as Trump whisperer and White House brain, Bannon has decided to do the Tea Party insurgency thing all over again, except this time with his
- nationalist-populist cocktail instead of the
- last round’s notional libertarianism.
.. Maybe the Tea Party was a dead end, but some Trumpist primary candidates will finally produce a Republican Party capable of doing something with its power.
.. His professed nationalism, with its promise of infrastructure projects and antitrust actions and maybe even tax hikes on the rich, is potentially more popular than the Tea Party vision ..
.. But this imaginative exercise collapses when you look at Bannon’s own record and the candidates he’s recruiting.
.. At the White House, Bannon did not manage to inject much heterodoxy into any part of the same old, same old Republican agenda. But he did encourage the president to pick racialized fights at every chance... his new grass-roots populism promises to be more of the same:
- a notional commitment to some nebulous new agenda,
- with white-identity politics and the
- fear of liberalism supplying the real cultural-political cement.
.. Especially because the would-be senators he’s recruiting are a mix of cynics and fanatics who seem to share no coherent vision, just a common mix of ambition and resentment... if you believe figures like Roy Moore and Erik Prince are going to succeed where Trump is obviously failing, I have some affidavits attesting to Harvey Weinstein’s innocence to sell you... He and his allies are the latest group to recognize the void at the heart of the contemporary Republican Party, the vacuum that somebody, somehow needs to fill.
- .. The activists and enforcers of the Tea Party era tried with a libertarian style of populism.
- Paul Ryan tried with his warmed-over Jack Kempism.
- My friends the “reform conservatives” tried with blueprints for tax credits and wage subsidies.
.. now they, too, need to reckon with a reality that has confounded every kind of Republican reformer since Barack Obama was elected: Our politics are probably too polarized, our legislative branch too gridlocked, and the conservative movement too dysfunctional and self-destructive to build a new agenda from the backbenches of Congress up, or even from the House speaker or Senate majority leader’s office.
.. Our system isn’t really all that republican anymore; it’s imperial, and even an incompetent emperor like Trump is unlikely to restore the legislative branch to its former influence. So if you want to remake the Republican Party as something other than a shambolic repository for anti-liberalism, the only way it’s likely to happen is from the top down —
- with the election of an effective, policy-oriented conservative president (which Donald Trump is not),
- surrounded by people who understand the ways of power (which Bannon, for all his bluster, didn’t) and
- prepared to both negotiate with Democrats and bend his own party to his will.
.. I would not be wasting my time trying to elect a few cranks and gadflies who will make Mitch McConnell’s life more difficult.
Instead I would be looking for the thing that too many people deceived themselves into believing Trump might be, and that Bannonite populism for all its potential strength now lacks: a leader.