A Legal and Political Roundup

Four stories to cover, each with big ramifications

Image courtesy of Politico

Let’s do a roundup of four major stories and developments.

First, the radical Supreme Court majority deployed its “shadow” docket to overturn a three-judge panel, which had ruled Texas’s mid-decade redistricting an illegal racial gerrymander.

Second, Admiral Mitch Bradley testified behind closed doors in Congress, showing a video of strikes that destroyed a vessel off the coast of Trinidad on September 2, first killing nine crewmembers then two more in a double-tap strike 41 minutes later.

Third, a federal grand jury refused to indict New York State Attorney General Letitia James on bogus mortgage fraud charges.

Fourth, I’ll close with some somewhat overdue thoughts on the special election that took place earlier this week in Tennessee’s Seventh Congressional District.

Ready? Let’s dive in.

The gerrymander green light

Yesterday evening, the six Republican-appointed justices of the Supreme Court decided, to no one’s surprise, to help out their own party. They ruled, via the infamous emergency or “shadow” docket, that Texas should be able to use its proposed redrawn map. They arrived at this decision despite a carefully-considered decision by a Trump judicial appointee, who had struck the map down as an illegal racial gerrymander.

The decision is legally unsupportable for at least two big reasons.

First, an appellate court—even SCOTUS—is supposed to defer to the factual findings of the trial court unless there was some kind of clear error. Here, the findings of the panel were well supported by the evidence, but the radical justices didn’t stay in their lane. Instead, they substituted their own assessment of the facts because it suited them. It’s further evidence of their bad faith and partisan capture.

Second, the justices relied on a case called Purcell which generally holds that courts shouldn’t interfere with a redistricting plan when it happens too close to an election. But we’re still a year out from the midterms, and Texas could easily have gone back to its old maps without voters being confused or even realizing it. Moreover, the decision invites mischief going forward. States could intentionally create illegal maps knowing they get a freebie because SCOTUS simply won’t allow courts to step in to fix them.

So what now? SCOTUS believes it has handed the GOP up to five more congressional seats. But California moved earlier this year to counter that with its own partisan gerrymander, essentially negating that move by Texas. The California map is being challenged in federal court too. But there’s a bit of a silver lining: Three of those six radical justices—Thomas, Alito and Gorsuch—indicated that California’s responsive gerrymander was also a political one, at least suggesting that it is also presumably beyond the reach of the federal courts.

Let’s hope that reasoning holds.

The Court put its finger on the scale for the GOP. It’s done so before, and it will do so again, at least until we force reform by way of court expansion and term limits. But as I’ll discuss in my assessment of the election in TN-7 this past Tuesday, the GOP may have made a bad miscalculation—also known as a “dummymander”—by drawing new congressional maps that put its own House incumbents at greater risk.

Texas’s aggressive moves have been ratified by a biased Court, but the state could wind up deeply regretting them. Whether it will is now up to the voters.

Four strikes, you’re out?

Yesterday, Admiral Bradley showed a military video of four separate strikes upon the unarmed vessel that the Defense Department claimed was being used to smuggle drugs. The video raised serious questions over the legality of the second strike, given that the survivors posed no threat. In fact, as Bradley admitted, the survivors were shirtless, without communications, and stranded in the middle of the ocean with their vessel upside down.

Bradley’s explanation for why he ordered more strikes upon the vessel was, as one viewer noted, “insane.” Per the New York Times,

In the briefings, military officials are said to have told lawmakers they assumed the hull might be afloat because it still contained packs of cocaine. They thought that the survivors might eventually have managed to float back to Venezuela, allowing them to try again to deliver that cocaine, or that another boat could come retrieve it. They assumed the survivors could be communicating.

This is a record scratch moment. In what world does our military give an order to kill survivors who might be able to turn their boat back over and might then be able to get “drugs” back to their country? This is all speculative, to start with. But it also seeks to transform a non-capital offense into a capital one, all because the White House has labeled the targets “terrorists.”

But these aren’t “terrorists” with bombs and guns posing a threat to the U.S. Their only alleged crime is drug trafficking, and there isn’t even any evidence of that. Nor was there evidence of any of the things Bradley claimed he was concerned about. For example, he ordered the strike but

the video did not show any radios or satellite phones, according to the people familiar with the briefings, and a surveillance plane apparently did not spot any nearby boat.

Despite this, some GOP senators who viewed the footage left the meeting with a clear intent to protect the White House, Secretary Hegseth and Bradley. Sen. Tom Cotton (R-AR) called the attack “righteous” and “highly lawful and lethal.” He claimed the video showed two survivors trying to flip a boat “loaded with drugs bound for the United States” and declared the double-strikes were “exactly what we’d expect our military commanders to do.”

But Democratic senators and representatives seemed shaken by what they saw. Rep. Jim Himes (D-CT), the top Democrat on the House Intelligence Committee and someone familiar with counterterrorism and covert operations, declared the footage was “one of the most troubling things I’ve seen in my time in public service.” He added, “You have two individuals in clear distress without any means of locomotion with a destroyed vessel who were killed by the United States.” Sen. Jack Reed (D-RI), the ranking Democrat on the Armed Services Committee, said the briefing “confirmed my worst fears about the nature of the Trump administration’s military activities.”

A grand jury returns a “no bill” on James

Just two weeks ago, a judge disqualified Trump lackey Lindsey Halligan from her position as U.S. attorney and dismissed an indictment against New York State Attorney General Letitia James. That dismissal was without prejudice, meaning that in theory the Justice Department could try again. So it did, this time reportedly by bringing in U.S. attorneys from Missouri because no officials in the Eastern District of Virginia would risk putting their names and reputations behind such an indictment.

It bears repeating that it is usually incredibly easy to obtain an indictment. The bar is by definition low. You only need “probable cause” to believe someone has committed a federal offense. And generally, prosecutors only bring cases where they believe they can get a unanimous jury to convict. So it’s exceedingly rare for a grand jury to find no probable cause, reject the government’s case entirely, and return a “no bill” for indictment.

But that’s exactly what happened here. And it is a very bad development for the Justice Department, which is still desperately attempting to carry out Donald Trump’s campaign of political retribution on his enemies.

Grand jurors in the Virginia and D.C. area now understand that they are being used as pawns in Trump’s game, and they are refusing to march forward as requested. What’s more, if federal prosecutors ever do find a grand jury willing to buy their B.S., the odds are very high that they will have a very hard time getting 12 jurors to convict James.

Any reasonable prosecutor would understand this. But we aren’t dealing with reasonable people.

A true test in TN-7

Election watchers generally tend to discount House special election results. After all, they usually occur in “safe” districts for one party or the other because that’s where members are plucked or retire from. Special elections generally don’t attract the attention of the national parties or outside money. And usually, only the highest propensity voters show up for them.

That’s what made TN-7 all the more fascinating, especially for election data crunchers. In this case, even though the district should have been a “safe” R+22 district based on the 2024 results, it was the first special election to take place after the Democrats romped in November’s general election. So the national parties were paying close attention, and lots of outside money flooded in from both sides. Importantly, all this attention and money meant turnout wound up being on a par with the midterms of 2022.

That made the race in TN-7 the most “midterm-like” special election held this year. And guess what? Democrats moved the needle by a lot. It was a 13-point swing their way, even with all that outside money and all that national attention.

In short, both the Dems and the GOP went all in on TN-7, but Republicans still couldn’t stop a double digit move to the left.

The effect wasn’t limited to certain counties. The entire district shifted blue, across the board, in every county. But the biggest blue shift, a +20 move, landed in the bluest county in the district, Davidson. Check out the third column in this chart and, in particular, row two.

To my eye, TN-7 is the clearest indication from any special election result that a massive Blue Wave, if not a Blue Tsunami (a “Blu Tsu”), is building. If this contest reflected how the midterms would go, and voters everywhere were to shift an average +12 toward the Democrats in those midterms, that would wipe out Republicans in nearly all of their newly gerrymandered districts.

Granted, we are a year out, and that’s an eternity in politics. Many things could happen, from war to civil unrest to a stock market crash and full-blown recession. Between now and then, you might even wake up to your phone blowing up over “the big news” that he’s finally gone. (It’s okay to smile.)

But assuming Trump is still dozing through his cabinet meetings, building his golden ballroom and waving off affordability as a “hoax,” and assuming the GOP still has no fix for soaring healthcare costs while Medicaid and food stamps are slashed, these results portend historic losses for the party now in power.

Not even corrupt referees, like we now have on SCOTUS, would be able to save them from being washed away by the coming wave.