On Tuesday, the North Carolina Democratic Party sued the legislature over a law passed this year that will eliminate judicial primary elections in 2018 and then lower the threshold for candidates to win the general election in potentially crowded fields. This was part of a larger plan to first redraw legislative districts to favor Republican judges (which, the Republicans said, necessitated the elimination of primaries, to give them some time to hash out new districts) and eventually to end judicial elections in favor of legislative appointments altogether. And that’s where our story picked up yesterday, in a hearing of the Senate Judiciary Committee on changing the way judges are put in place, Senator Dan Bishop—a progenitor of HB 2—refused to allow Governor Cooper’s representative at the hearing, retired Wake County Superior Court Judge Don Stephens, to speak. In return, Democrats walked out. Then, Republicans introduced a new set of election maps for judges and district attorneys, even though that wasn’t on the agenda.
- Let’s go to the play-by-play: “Bishop said that since Stephens isn’t employed by Cooper’s office, he wouldn’t let him speak. Democratic Sen. Jay Chaudhuri of Raleigh told Bishop that was ‘a missed opportunity.’ A fellow Democrat, Sen. Floyd McKissick of Durham, then asked permission to speak. Bishop denied him several times but eventually let McKissick ask a question. McKissick asked for Stephens to be able to give his presentation. Bishop disagreed, saying he’s the committee chairman and gets to make that decision. Then McKissick, Chaudhuri and the third Democrat on the committee, Joel Ford of Charlotte, stood up and walked out without another word. The meeting proceeded without them. At the end of the meeting the remaining Republicans introduced a new set of proposed election maps for judges and district attorneys–an issue that was not on the public agenda for the meeting. Bishop told the committee that the new maps were drawn to address potential problems with a set of maps proposed by House Republicans that could draw lawsuits. McKissick came back into the room after the meeting ended to get a copy of the new map proposals and said no one had informed him ahead of time that they would be presented Wednesday.”
- “Later on Wednesday, Stephens provided the written speech he said he had planned to give if he had been allowed to speak. In it, he sharply criticizes the General Assembly for what he says is partisan meddling in the judicial system, purely out of retribution. ‘Has the legislature simply declared the quality of the judiciary to be poor because some judges have disagreed with the legislature in their decisions?’ Stephens’ notes read. ‘… The fact that we are having this conversation impugns the integrity of every sitting judge in North Carolina, be they Republican or Democrat.’”
- A spokesman for Phil Berger called the walkout a “political stunt.”
WHAT IT MEANS: I’ve written before about the legislature’s naked partisan schemes, which run the spate of laws they passed after Cooper’s election last year to curtail his authority to the gerrymandered legislative districts to, now, a full-on assault on a judiciary that has been the only constraint on Republican overreach. Yesterday’s hearing is a fruit of that tree. There is a good possibility the new legislative districts being carved by a federal court will end the GOP’s supermajority, meaning Cooper’s vetoes will matter and Republican hegemony will no longer be a thing. And so, while they have unbridled power, they’re doing their best to lock it down everywhere they can. If judges say what you’re doing is unconstitutional, change the maps so friendlier judges take their place, or, better, get rid of the voters and appoint the judges yourself. That’s really at the heart of it.
- As a matter of principle, I’m sympathetic to the (merit-based) appointment rather than election of judges; people tend not to know much about the candidates, and the rules of the court system are designed to prevent candidates from telling you how they would rule in office, which kind of negates the purpose. But as a matter of reality, what the Republicans are doing, yet again, is trying to tip the balance of power irrevocably in their favor, across all branches of government, no matter what the voters think.
The dynamic here is pretty unmistakable: the closer Robert Mueller’s investigation gets to the Trump inner circle, the louder Republicans (and Fox News) attack him, his team, and the FBI generally. Yesterday, we saw this in the House Judiciary Committee, where Republicans tore after Deputy Attorney General Rod Rosenstein, who appointed Mueller. Some highlights:
- “The Republicans’ effort received a fresh jolt from the release one night earlier of text messages exchanged last year between an F.B.I. agent, Peter Strzok, and an F.B.I. lawyer, Lisa Page, describing the possibility of an election victory by President Trump as ‘terrifying’ and saying that Hillary Clinton ‘just has to win.’ Mr. Mueller removed Mr. Strzok from the Russia investigation as soon as he learned of the texts, a step that Mr. Rosenstein praised. Nonetheless, Republicans used the messages as fodder to attack the impartiality of Mr. Mueller during an appearance by Mr. Rosenstein before the House Judiciary Committee.”
- “‘The public trust in this whole thing is gone,’ said Representative Jim Jordan, Republican of Ohio, summing up sentiments among his party. ‘It seems to me there are two things you can do: You can disband the Mueller special prosecutor, and you can do what we’ve all called for and appoint a second special counsel to look into this.’”
- Rosenstein pushed back, saying he “would only fire Mr. Mueller if he had cause under Justice Department regulations—and he said nothing that has happened so far met that standard. Instead, Mr. Rosenstein mounted a step-by-step defense of Mr. Mueller’s conduct. He noted that department rules prevented Mr. Mueller from taking political affiliation into consideration when hiring for career positions, and he distinguished between officials holding political views and making investigative decisions out of bias. He said Mr. Mueller would be careful not to allow the latter.”
- “Republicans repeatedly pressed Mr. Rosenstein to appoint a second special counsel to investigate political partisanship in the department in its handling of the Trump-Russia investigation or in last year’s decision not to charge Mrs. Clinton with a crime over her use of a private email server while secretary of state—an idea that has been promoted heavily by commentators on Fox News and elsewhere in recent days.
- “Mr. Rosenstein said he could not appoint another special counsel without a credible allegation of a potential crime to investigate.”
- “Mr. Rosenstein’s stance signaled that despite the mounting assault on Mr. Mueller by Mr. Trump’s supporters, the fundamental dynamic surrounding the special counsel had not changed: If Mr. Trump were to try to fire Mr. Mueller based on any developments so far, the president would likely first have to fire or force the resignation of Mr. Rosenstein and then hunt for a replacement willing to carry out his orders, echoing Richard Nixon’s so-called Saturday Night Massacre during the Watergate scandal.”
WHAT IT MEANS: There’s evidence that Jeff Sessions’s DOJ is itself trying to undermine Mueller’s investigation. Indeed, the DOJ invited reporters to review the text messages earlier this week to make sure they leaked ahead of Rosenstein’s testimony.
- “That briefing—held in the midst of an ongoing inspector general investigation, and reportedly offered to the press before members of the House panel had seen the messages—was described as ‘very odd and unprofessional’ by Samuel Buell, a former assistant U.S. attorney and Duke University law school professor. ‘It shouldn’t surprise anyone that there are people in the political appointee realm at DOJ who are rooting for Mueller to fail,’ said Buell. ‘That doesn’t mean they are going to be prepared to actually try to derail him. It all merits vigilance.’”
- The barrage of increasingly vitriolic attacks on the Justice Department and the FBI—check the Tweet below—is “dangerous,” according to former Republican House Intelligence Committee chairman Mike Rogers.
- The play here isn’t to convince Rosenstein that Mueller is a bad actor. And it’s not to convince him to appoint a second special counsel to investigate the first special counsel and the DOJ—which is fairly ridiculous, especially considering that no actual crime has been alleged. Instead, there’s an effort to lay a groundwork that will enable Trump to fire conduct his own Saturday Night Massacre and still retain enough support from the Republican Party to remain in office.
This post was excerpted from the INDY’s morning newsletter, Primer. To read this morning’s edition in full, click here. To get all the day’s local and national headlines and insights delivered straight to your inbox, sign up here.