Hilarious Jayapal gaffe proves Dems find saying ‘insurrection’ to be hard

A Democrat serving in the House of Representatives was at the center of an apparent blunder Wednesday when she claimed former President Donald Trump "incited an erection."

The comment from Rep. Pramila Jayapal, D-Wash., came during the House Judiciary Committee's consideration of a resolution that, if passed, would set up a full House vote on whether to hold Hunter Biden in contempt of Congress for defying a congressional subpoena as part of the House impeachment inquiry against President Biden.

"I think we're all outraged about many things, but if we're gonna talk about outrageous things that have happened or things that have never happened, let's talk about the fact that President Trump incited an erection."

Quickly realizing what she had said, Jayapal began laughing and said, "Maybe that, too."


"You can talk about that too, I guess," Rep. Dan Bishop, R-N.C., chimed in.

"Maybe we should talk about that, too," Jayapal responded.

Correcting herself and moving on from the awkward situation, Jayapal said, "The president incited an insurrection."

Jayapal is not the first Democrat to use the word "erection" instead of "insurrection" when talking about the events of Jan. 6, 2021, and President Trump's actions on that day.

In January 2021, while pushing for an impeachment trial of Trump on the Senate floor, Senate Majority Leader Chuck Schumer, D-N.Y., claimed the former president was responsible for an "erection."

"Make no mistake, there will be a trial and when that trial ends, senators will have to decide if they believe Donald John Trump incited the erection – insurrection – against the United States," Schumer said at the time.


Jayapal's colleague, Rep. Adam Schiff, D-Calif., has also been guilty of using the word "erection" to describe the events from more than three years ago.

Schiff's slip-up came during a November 2021 appearance on "The View," where he responded to pressure from one host who asked him whether he regretted talking up the discredited Steele dossier.

"But let’s not use that as a smokescreen to somehow shield Donald Trump’s culpability for inviting Russia to help him in the election, which they did, for trying to coerce Ukraine into helping him in the next election, which he did, into inciting an erection…"

Catching himself immediately, Schiff corrected himself and used the word "insurrection" before continuing his comments.

Schiff also slipped up and used the word during a January 2021 appearance on CNN, where he claimed then-House Minority Leader Kevin McCarthy, R-Calif., incited an "erection."

Tennessee Supreme Court justice announces retirement

Tennessee Supreme Court Justice Roger Page announced on Monday that he plans to retire in August 2024.

In a statement from Tennessee's court system, the 68-year-old said his time as a judge has been humbling, inspiring and the honor of a lifetime. He was first appointed to the high court by former Republican Gov. Bill Haslam in 2016. His last day will be Aug. 31.

"The Tennessee judiciary is truly a family, and I have been fortunate to walk this path with my great friends in the judiciary," Page said in a statement. "I will miss all of them and treasure their friendship."


The decision will give Republican Gov. Bill Lee a chance to appoint his third justice on the five-member court. The five current justices were all appointed by Republican governors.

Page has spent more than 25 years as a judge at the trial court, intermediate appellate and Tennessee Supreme Court levels. Haslam appointed him to the Tennessee Court of Criminal Appeals in 2011 before picking Page for the state Supreme Court about five years later. Page served as the chief justice from 2021 to 2023.

During his tenure, Page helped secure funding for electronic filing for the court system, advocated for access to pro bono services and promoted livestreaming of appellate arguments, according to the statement.


Page grew up on a farm in the Mifflin area of West Tennessee. Before his legal career, he worked as a chief pharmacist and assistant store manager for Walgreens.

"If I hurry, I might have time for one more career," Page said.

He praised the work done by Tennessee's judiciary system during the pandemic, including advances in technology.

"It has been incredibly gratifying to watch the start of an evolution across the judiciary," Page said. "I look forward to following those changes and to catching up with my judicial family in between trips I have been planning for years, watching my grandkids play sports, and spending time with my wonderful wife."

In Tennessee, the governor's picks for Supreme Court must also be confirmed by state lawmakers. Republicans have supermajority control in both legislative chambers. Additionally, Supreme Court justices face "yes-no" retention elections every eight years. Voters retained Page and the other four justices at the time during the 2022 election.

Wisconsin Supreme Court weighs challenge to constitutionality of state-funded school choice programs

Supporters of Wisconsin's taxpayer-funded school choice and independent charter school programs urged the state Supreme Court on Tuesday to reject a lawsuit seeking to declare the programs unconstitutional, saying such a move would create chaos for tens of thousands of families with students currently enrolled.

Private schools, parents with students who attend them, advocacy groups and the state chamber of commerce argue in court filings that the 32-year-old program has benefitted families for a generation and the effort to undo it is politically motivated, after the Supreme Court's majority shifted to liberal control earlier this year.

"A mere change in membership should not create an opportunity to challenge precedent," supporters of school choice programs, being represented by the Wisconsin Institute for Law and Liberty, contend. "A single election is not a mandate to radically change the law."


The lawsuit was filed two months after the state Supreme Court flipped to 4-3 liberal controlled. With that change, Democrats hope the court will rule in their favor in pending cases seeking to overturn Republican-drawn legislative electoral maps and undo the state’s ban on abortion.

The school choice lawsuit comes after decades of complaints from Democrats who have argued that the program is a drain on resources that would otherwise go to public schools.

The nation's first school choice program began in Milwaukee in 1990. Then seen as an experiment to help low-income students in the state's largest city, the program has expanded statewide and its income restrictions have been loosened, and it served more than 52,000 students at a cost of $444 million in the last school year.

Democrats including Gov. Tony Evers, who previously served as state superintendent of education, have been longtime critics of the program. But Evers this summer agreed to increase spending on the programs as part of a larger education funding package that was also tied to a deal sending more money to Milwaukee and local governments.

The first question for the Wisconsin Supreme Court to decide is whether to take the case directly or first have it work its way through lower courts. The plaintiffs want the high court to take it directly, which would mean a ruling could come in months rather than perhaps years if it had to go through the lower courts.

The lawsuit was brought by several Wisconsin residents and is being funded by the liberal Minocqua Brewing Super PAC. Kirk Bangstad, who owns the Minocqua Brewing Co., is a former Democratic candidate for U.S. House and state Assembly. His brewery produces beer with politically themed names that tout Democrats, such as "Evers Ale," a nod to the governor.

Bangstad's super PAC has funded previous lawsuits targeting Republicans.

The lawsuit asks the court to stop three state officials from continuing the choice programs: Assembly Speaker Robin Vos, Superintendent of Public Instruction Jill Underly and Secretary of the Department of Administration Kathy Blumenfeld.

All three of them faced a Tuesday deadline to file arguments.

The lawsuit argues that the state’s revenue limit and funding mechanism for voucher school programs and charter schools violate the Wisconsin Constitution’s declaration that public funds be spent for public purposes.

It also contends that vouchers defund public schools, do not allow for adequate public oversight and do not hold private schools to the same standards as public schools.


The Wisconsin Supreme Court ruled in 1992 that Milwaukee’s voucher program was legal. But the current lawsuit alleges that as the program has expanded, the situation has dramatically changed.

At the start of last school year, enrollment in choice programs was more than 29,000 in Milwaukee, 3,900 in Racine and 17,000 elsewhere in the state, according to the state Department of Public Instruction. Another 2,200 disabled students received vouchers under a special needs scholarship program.

Ending the programs now would cause "chaos," for tens of thousands of families, argued 22 parents of voucher-enrolled students, private schools and choice advocacy groups.

The Wisconsin Institute for Law and Liberty, a conservative activist law firm, on Tuesday released a report claiming that if the school choice program ended, the Milwaukee school district would have to open about 17 additional buildings to accommodate the influx of students. Statewide, more than 3,700 teachers would have to be hired in public schools, the report said.

Former Wisconsin Chief Justice ordered to turn over records related to Protasiewicz impeachment advisement

A Wisconsin judge on Friday ordered the former chief justice of the Wisconsin Supreme Court to produce records related to her work advising the Republican Assembly speaker on whether to impeach a current justice.

Former Chief Justice Patience Roggensack was one of three former Supreme Court justices asked by Assembly Speaker Robin Vos to give him advice on pursuing impeachment. Vos has floated impeachment against liberal Justice Janet Protasiewicz based on how she rules on a pending redistricting lawsuit Democrats hope will result in new legislative electoral maps.

The liberal watchdog group American Oversight filed a lawsuit seeking records from Vos and the three former justices. Vos and two of the former justices, David Prosser and Jon Wilcox, turned over records. That included an email from Prosser to Vos advising against impeachment. Vos turned over more than 21,000 pages of documents last week, American Oversight attorney Ben Sparks said at a Friday hearing.


Wilcox told The Associated Press he did not produce a report, but verbally told Vos impeachment was not warranted.

The only former justice who did not produce any records was Roggensack. She has not said what her advice was to Vos and he has refused to say what it was.

When American Oversight attempted to serve Roggensack with a subpoena at her home, an elderly man who answered the door said he did not know anyone by that name and closed the door, Sparks said in court while quoting a statement from the process server.

On Friday, Dane County Circuit Judge Frank Remington issued an order giving Roggensack 30 days to produce any records she has.

"Wisconsin has had and continues to have a long and storied tradition on the responsibility of open government," Remington said.

All of the former justices have a responsibility to produce records they maintain related to their work "whether they understood it or not in accepting the invitation to opine on the question presented," he said.

Roggensack's attorney, Robert Shumaker, did not return a phone message or email seeking comment.

Vos originally said he was considering impeachment if Protasiewicz did not recuse herself from the redistricting case. She did not recuse. Vos did not move to impeach her, following the advice against impeachment from the former justices. But now he’s suggesting he may attempt to impeach her if she does not rule in favor of upholding the current Republican-drawn maps.

The Wisconsin Constitution reserves impeachment for "corrupt conduct in office, or for crimes and misdemeanors."


Republicans have argued Protasiewicz has pre-judged the case based on comments she made during the campaign calling the current maps "unfair" and "rigged."

Protasiewicz, in her decision not to recuse from the case, said that while stating her opinion about the maps, she never made a promise or pledge about how she would rule on the case.

The redistricting lawsuit, filed the day after Protasiewicz joined the court in August and flipped majority control to 4-3 for liberals, asks that all 132 state lawmakers be up for election next year in newly drawn districts.

The legislative electoral maps drawn by the Republican-controlled Legislature in 2011 cemented the party’s majorities, which now stand at 64-35 in the Assembly and a 22-11 supermajority in the Senate. Republicans adopted maps last year that were similar to the existing ones.

Wisconsin’s Assembly districts rank among the most gerrymandered nationally, with Republicans routinely winning far more seats than would be expected based on their average share of the vote, according to an AP analysis.

Ex-Wisconsin Supreme Court justice fights subpoena over Protasiewicz impeachment advice

A former Wisconsin Supreme Court justice is fighting a subpoena ordering her to appear in court in a lawsuit related to advice she gave about possible impeachment of a current liberal justice, calling it "unreasonable and oppressive."

Republican lawmakers have threatened possible impeachment of current Justice Janet Protasiewicz related to comments she made during the campaign calling GOP-drawn legislative maps "rigged" and "unfair." She joined with the liberal majority of the court in agreeing to hear a lawsuit supported by Democrats that seeks to overturn the GOP maps and enact new ones.

Wisconsin Republican Assembly Speaker Robin Vos asked three former conservative Supreme Court justices for advice on impeachment. Two of the three told him that impeaching Protasiewicz was not warranted. The third, former Chief Justice Patience Roggensack, has not said what her advice was and Vos has repeatedly refused to disclose it.


The liberal watchdog group American Oversight filed a lawsuit alleging that the three former justices researching impeachment for Vos had violated both the state open meetings and open records laws. American Oversight wants the judge to order the former justices to meet in public and to release records related to their work. It was also seeking attorneys fees.

Last week, Roggensack received a subpoena compelling her to attend a hearing in the case was scheduled for this Thursday. On Monday, she asked to be released from the subpoena.

"I believe it would be unreasonable and oppressive to require me to appear at a hearing on a motion for preliminary injunction and even for the Court to consider such a motion," Roggensack wrote.

The judge scheduled another hearing for Wednesday afternoon, likely to address Roggensack's request.

Roggensack, in her affidavit with the court, said the order being sought, which included requiring the former justices to meet in public, would impair her First Amendment rights of freedom of expression, peaceably assembling and petitioning the government.

Roggensack said that Vos, the Republican legislator, asked for her advice on impeachment. Roggensack said she told him she had been researching the issue on her own "because I found the topic to be interesting and because I had not previously considered the standards for impeachment of a Supreme Court justice."

Roggensack said she never considered Vos’s request to mean she was becoming part of a governmental body or committee as American Oversight alleged in its lawsuit.

Vos himself called the effort a panel when he announced in September that he was seeking their advice.

Roggensack said she had a lunch with the other two former justices, David Prosser and Jon Wilcox, along with Vos’s attorney. Prosser and Wilcox have also said that was the only meeting the three former justices had. They all said that they separately advised Vos and did not collaborate on their advice.


American Oversight filed open records requests with the former justices. Prosser released the email he sent Vos that included his impeachment advice, as well as voicemail messages from Roggensack and text messages they exchanged.

Neither Wilcox, Roggensack, nor Vos’ office have responded to its requests for records, American Oversight said.

Vos originally said he was considering impeachment if Protasiewicz did not recuse herself from the redistricting case. She didn’t recuse. Vos didn't move to impeach her, following the advice against impeachment from the former justices. But now he's suggesting he may attempt to impeach her if she does not rule in favor of upholding the current Republican maps.

The Wisconsin Constitution reserves impeachment for "corrupt conduct in office, or for crimes and misdemeanors."

Top Wisconsin Republican stands by Protasiewicz impeachment threats

The Republican leader of Wisconsin’s Assembly refused to back down on Thursday from possibly impeaching a newly elected liberal state Supreme Court justice over her refusal to step aside in a redistricting case, even after two former conservative justices advised him against the unprecedented move.

"No, absolutely not," Assembly Speaker Robin Vos said when asked at a news conference if impeachment of Justice Janet Protasiewicz was off the table.

"If they decide to inject their own political bias inside the process and not follow the law, we have the ability to go to the U.S. Supreme Court," Vos said, "and we also have the ability to hold her accountable to the voters of Wisconsin."


The Wisconsin Democratic Party said the comments are a signal that Republicans are backing off from impeaching Protasiewicz "by moving the goalposts in an effort to save face."

Vos first floated the possibility of impeachment in August after Protasiewicz called the Republican-drawn legislative boundary maps "rigged" and "unfair" during her campaign. Impeachment has drawn bipartisan opposition and two former conservative Wisconsin Supreme Court justices, asked by Vos to investigate the possibility, told him in the past week it was not warranted. Vos refused to say what advice he got from the third retired justice.

Protasiewicz refused to recuse from the redistricting lawsuit last week and sided with the liberal majority in accepting the lawsuit. Vos suggested Thursday that impeachment may hinge on how Protasiewicz rules on that case.

"She said she’s going to follow the law," Vos said. "The most important aspect of the law is following past precedent."

Vos also said Protasiewicz’s acceptance of nearly $10 million from the Wisconsin Democratic Party would unduly influence her ruling.

Protasiewicz last week rejected those arguments, noting that other justices have accepted campaign cash and not recused from cases. She also noted that she never promised or pledged to rule on the redistricting lawsuit in any way. A state judiciary disciplinary panel has rejected several complaints against Protasiewicz that alleged she violated the judicial code of ethics with comments she made during the campaign.

With Vos tying impeachment to how Protasiewicz rules on redistricting, it’s nearly certain that Democratic Gov. Tony Evers would be able to name a replacement if the Legislature removes Protasiewicz from office or she resigns.

A special election is only triggered if a vacancy occurs before Dec. 1. Oral arguments in the redistricting case are set for Nov. 21, which makes it nearly certain a ruling won’t come until after the special election deadline.

That means if the Legislature moves to impeach and convict Protasiewicz, they would do it knowing that Evers would name her successor — who would certainly be another liberal.


Other justices, both conservative and liberal, have spoken out in the past on issues that could come before the court, although not always during their run for office like Protasiewicz did. Current justices have also accepted campaign cash from political parties and others with an interest in court cases and haven’t recused themselves. But none of them has faced threats of impeachment.

The legislative electoral maps drawn by the Republican-controlled Legislature in 2011 cemented the party’s majorities, which now stand at 64-35 in the Assembly and a 22-11 supermajority in the Senate. Republicans adopted maps last year that were similar to the existing ones.

Wisconsin’s Assembly districts rank among the most gerrymandered nationally, with Republicans routinely winning far more seats than would be expected based on their average share of the vote, according to an Associated Press analysis.

Both lawsuits ask that all 132 state lawmakers be up for election in 2024 in newly drawn districts.

Former WI Supreme Court justice refuses to name those involved in Protasiewicz impeachment push

One of three former Wisconsin Supreme Court justices asked to review possible impeachment of a current justice refused to tell a judge Friday who else was looking into that question.

Former Justice David Prosser called a lawsuit alleging violations of the state open meetings law "frivolous," saying those looking into impeachment met once but are operating independently and not as a governmental body subject to the law.

Prosser and the attorney for Republican Assembly Speaker Robin Vos both refused to tell the judge during Friday's hearing who else was tabbed by Vos to review impeachment. Vos is looking into possible impeachment of liberal Justice Janet Protasiewicz if she does not recuse herself from a pair of redistricting lawsuits.


The liberal watchdog group American Oversight sued Monday, alleging the group of justices was violating the state open meetings law by not letting the public attend its meetings. Prosser is the only former justice to say publicly that he is among the group.

Prosser indicated during the hearing before Dane County Circuit Judge Frank Remington that three former justices met at least once.

"Three people had lunch together," Prosser said. "We had lunch together because we didn’t know what we were really supposed to do. If other people are going to have input, it’s going to be their input, not my input. I think this is an absolutely frivolous case."

When asked directly by the judge if he would name who the other two former justices were, Prosser said, "No." Likewise, Vos attorney Matthew Fernholz said he would not disclose their names without first consulting with Vos. Vos has repeatedly declined to name who he asked, only saying he tabbed three former justices to look into impeachment.

None of the eight other living former justices, six of whom are conservatives, have said they are a part of the review. The most recently retired justice, conservative Patience Roggensack, hung up when contacted by The Associated Press to ask if she was on the panel.

The judge asked Prosser if the group intended to meet again.

"The people that I had lunch with had the same view of what we might say and we would do it individually," Prosser said. He said the group was not producing a formal report and Vos never told him he was creating a panel.

"The word ‘panel’ never came up," Prosser said. "Certainly we were not ordered to do anything. ... This is not a governmental body by any stretch of the imagination."

Vos himself called it a panel when he announced its formation Sept. 13.

"I am asking a panel of former members of the Wisconsin Supreme Court to review and advise what the criteria are for impeachment," Vos said on WISN-AM.

Vos said he was asking the group to "come back with an analysis to say whether or not (impeachment) is possible and how it should occur."

Prosser and Fernholz on Friday both asserted that the former justices were like any other constituent that a public official may meet with to gather advice.

"That’s done all the time," Prosser said. "That is not something that is going to require notices and people coming and listening to everything that’s happening. That’s just not realistic at all."

Fernholz took it a step further, saying "The secret panel does not exist."

American Oversight had asked the judge to order the group not to meet. But Judge Remington said he can't consider the case until after the district attorney has 20 days to investigate American Oversight's complaint. That deadline is Oct. 9. Remington set another hearing for Oct. 19.

"It could be very well, Justice Prosser, that this is not a committee that is not subject to public meetings law," Remington said. "We just don’t know because the facts are uncertain."

Dane County District Attorney Ismael Ozanne said in court Friday that it appeared to him the group may be violating the open meetings law, calling it "astonishing."

"If nothing else they should be meeting in public," Ozanne said.

But he said his investigation hasn’t gotten far, in part, because he doesn’t know who the other former justices working on the issue are.


American Oversight attorney Christa Westerberg said the group of justices is subject to the open meetings law because Vos created it to advise him, it has a defined membership and he asked that it report back to him with recommendations.

"We don’t have secret panels in Wisconsin," she said. "The work of government isn’t secret. I don’t think this is a very heavy lift. ... It just boggles my mind that all of this can be done in secret."

Protasiewicz’s installment in August flipped the high court to liberal control for the first time in 15 years. Vos has called for her to recuse herself in the redistricting cases because of comments she made on the campaign trail calling the state’s heavily gerrymandered, GOP-drawn electoral maps "unfair" and "rigged," as well as the nearly $10 million she accepted from the Wisconsin Democratic Party.

Protasiewicz has yet to decide whether she will recuse herself from the cases. The court has also yet to decide whether it will take up the lawsuits.

Ethics complaints over WI Justice Protasiewicz’s campaign statements rejected

A state judiciary disciplinary panel has rejected several complaints lodged against Wisconsin Supreme Court Justice Janet Protasiewicz that alleged she violated the judicial code of ethics for comments she made during the campaign. It's a setback to Republicans who argued those remarks could warrant impeachment.

Protasiewicz on Tuesday released a letter from the Wisconsin Judicial Commission informing her that "several complaints" regarding comments she had made during the campaign had been dismissed without action.

The commission's actions are private unless released by one of the parties involved. Protasiewicz received permission from the commission to release its May 31 letter to her, which she then provided to The Associated Press.


Protasiewicz’s win in April flipped majority control of Wisconsin’s Supreme Court from conservative to liberal for the first time in 15 years. Democrats heavily backed her campaign, during which Protasiewicz criticized Republican-drawn electoral maps and spoke in favor of abortion rights.

In recent weeks, Republican lawmakers have been floating the possibility of impeaching Protasiewicz over her comments calling the legislative maps they drew "unfair" and "rigged."

Protasiewicz never promised to rule one way or another on redistricting or abortion cases.

She took office in August, and in her first week, two lawsuits seeking to overturn the Republican-drawn legislative electoral maps were filed by Democratic-friendly groups. The Supreme Court has yet to decide whether to hear the cases, and Protasiewicz has not responded to a motion from the Republican-controlled Legislature that she recuse herself from the cases.

Protasiewicz sent the commission’s order Tuesday to attorneys in the redistricting cases, ordering them to respond by Sept. 18 on how it affects the request that she recuse herself from the lawsuits.

A lawsuit in a county court seeking to overturn Wisconsin's 1849 abortion ban was filed before Protasiewicz won election. That case is expected to eventually reach the Wisconsin Supreme Court.

The Wisconsin Republican Party in February released one complaint filed against Protasiewicz by Randall Cook, a Republican supporter. His complaint alleged that Protasiewicz had declared how she would rule on cases related to abortion and redistricting, in violation of provisions of the state judicial code.

"Wisconsin has never seen a Supreme Court Justice so brazenly declare how she would rule on a case before it ever came to the Court, and we had hoped the principles of equal justice would be seriously considered by the Judicial Commission, despite their liberal bias," Wisconsin Republican Party Chairperson Brian Schimming said in a statement. "It was clearly asking too much."

In the letter to Protasiewicz, Judicial Commission Executive Director Jeremiah Van Hecke referred to "several complaints" it had received and dismissed without action. The letter said the complaints pertained to comments she had made at a Jan. 9 candidate forum and several interviews in December and January.

The complaints also alleged that she had made false comments about her opponent, Republican-backed Dan Kelly, in two campaign ads and in social media posts, according to the commission's letter.

The commission did not give a reason for why it dismissed the complaints, but Van Hecke said that it had reviewed her comments, the judicial code of ethics, state Supreme Court rules, and relevant decisions by the state and U.S. supreme courts.

In one of the cases cited, a federal court in Wisconsin ruled there is a distinction between a candidate stating personal views during a campaign and making a pledge, promise or commitment to ruling in a certain way.

Protasiewicz declined to comment on the commission’s action.

The nine-member Judicial Commission is one of the few avenues through which people can challenge the actions of Supreme Court justices. It is tasked with investigating judges and court commissioners who are accused of violating the state’s judicial code of conduct. Its members include two lawyers and two judges appointed by the Supreme Court and five non-lawyers appointed by the governor to three-year terms.

Republican members of the state Senate judiciary committee on Tuesday and last month grilled judicial ethics commissioners up for reappointment about when justices and judges should recuse themselves from cases, especially if they call a case "rigged," a clear allusion to Protasiewicz’s campaign remarks.

Republicans, including Assembly Speaker Robin Vos, allege Protasiewicz has prejudged redistricting cases pending before the Supreme Court because of comments she made during her campaign. They also say she can't fairly hear the cases because she took nearly $10 million in campaign donations from the Wisconsin Democratic Party, which did not file the lawsuits but has long pushed for new maps.


Vos said Protasiewicz must recuse herself from any Wisconsin redistricting case and the commission's letter only "muddies the waters."

"The Judicial Commission decided Justice Protasiewicz could not be sanctioned for what she said on the campaign trail," Vos said in a statement. "The Commission did not address whether she can sit on a case after accepting $10 million in campaign funds from the Democrat Party — the interested party in the redistricting case. Nor did they address whether she may sit on a case having made commitments for how she would rule that are inconsistent with the obligation to be impartial."

The legislative electoral maps drawn by the Republican-controlled Legislature in 2011 cemented the party’s majorities, which now stand at 65-34 in the Assembly and a 22-11 supermajority in the Senate. It would take only 50 votes to impeach. It takes 22 votes to convict in the Senate, the exact number of seats Republicans hold.

If the Assembly impeaches her, Protasiewicz would be barred from any duties as a justice until the Senate acted. That could effectively stop her from voting on redistricting without removing her from office and creating a vacancy that Democratic Gov. Tony Evers would fill.

5th Circuit deals blow to federal gun statute used in Hunter Biden case

The U.S. Court of Appeals for the 5th Circuit on Wednesday voided a federal law that prevents unlawful drug users from possessing firearms.

The statute, 18 U.S.C. § 922(g)(3), bars anyone who is an "unlawful user of or addicted to any controlled substance," including marijuana, from possessing a gun. Violators can face up to 10 years in prison. However, a three-judge panel, citing the Supreme Court's landmark gun rights decision last year, unanimously found the statute unconstitutional as applied to defendant Patrick Daniels. 

Daniels, an admitted habitual marijuana user, was arrested in April 2022 after police searched his car and found marijuana and two loaded firearms. He was convicted in July 2022 and sentenced to nearly four years in prison and three years of probation — a conviction the 5th Circuit panel has now thrown out. 

Though the decision is limited to Louisiana, Mississippi and Texas, it could potentially impact the ongoing federal case against Hunter Biden, who is charged in Delaware under the same statute. Former Assistant U.S. Attorney Andrew McCarthy told Fox News the Justice Department could use the 5th Circuit's opinion as a rationale for a new plea agreement.


"Even though Hunter Biden’s situation is readily distinguishable from that of Patrick Daniels, it’s possible the Justice Department could rationalize that the 5th Circuit’s ruling supports its exercise of discretion to give Biden deferred-prosecution treatment (as currently proposed, two years of probationary conditions followed by dismissal if the conditions are met) in a plea agreement," McCarthy said. 

The 5th Circuit case, known as U.S. v. Daniels, was decided by Judges Jerry Smith, Stephen Higginson and Don Willett. Together, they held that the 922(g)(3) restriction was too broad as applied to Daniels and unsupported by a "historical tradition of firearm regulation," as required by the Supreme Court in Bruen. 

"Just as there was no historical justification for disarming a citizen of sound mind, there is no tradition that supports disarming a sober citizen who is not currently under an impairing influence," Smith wrote. "Indeed, it is helpful to compare the tradition surrounding the insane and the tradition surrounding the intoxicated side-by-side."

The statute's language does not distinguish between a person who is intoxicated or a person who is sober but in possession of drug paraphernalia at the time of their arrest.

The court observed that the founding-era law "institutionalized the insane and stripped them of their guns; but they allowed alcoholics to possess firearms while sober." 


"In short, neither the restrictions on the mentally ill nor the regulatory tradition surrounding intoxication can justify Daniels' conviction," Smith wrote. Further, the court said there was no historical tradition of stripping away gun rights from persons who are non-violent, drug users or otherwise. 

"The government asks us to set aside the particulars of the historical record and defer to Congress' modern-day judgment that Daniels is presumptively dangerous because he smokes marihuana multiple times a month. But that is the kind of toothless rational basis review that Bruen proscribes. Absent a comparable regulatory tradition in either the 18th or 19th century, § 922(g)(3) fails constitutional muster under the Second Amendment." 

The 5th Circuit has now declared two federal gun statutes unconstitutional under Bruen's precedent. In a previous case, U.S. v. Rahimi, the court struck down a federal statute that made it a crime for a person with a domestic violence restraining order to be in possession of a gun — a decision that has been appealed to the Supreme Court

In a concurring opinion, Higginson criticized Bruen for causing "uncertainty and upheaval" in how the government can apply public safety laws, which he said "face inconsistent invalidation." He observed that lower courts have wildly differed in their interpretations of Bruen, leading to disparate outcomes for individuals across the country charged with the same federal crime. 


"Already, as courts work through the impact of Bruen, defendants guilty of a gun crime in one jurisdiction are presently innocent of it in another," the judge said.

Such is the case for Hunter Biden, who is charged with violating 18 U.S.C. § 922(g)(3) because he was a crack cocaine user when he bought a Colt Cobra .38 Special from StarQuest Shooters, a gun store in Wilmington, Delaware, in 2018. 

McCarthy said that while there are essential differences between Biden and Daniels, the Justice Department could still use the 5th Circuit's decision to go easy on Biden.

"The 5th Circuit panel unanimously ruled that the 922(g)(3) restriction was too broad as applied to Daniels. Historically, the law has permitted gun possession prohibitions against people who were actively under the influence of drugs or alcohol, but not against people who were sometimes under the influence but apparently sober at the time they possessed guns," he explained. 


"Unlike Daniels, who by his own admission is a regular marijuana user, Biden was a cocaine addict who was provably binging on cocaine in the October 2018 time-frame when he possessed at least one firearm," McCarthy continued. "Marijuana is now legal in many states (even though it is still deemed a prohibited substance under federal law that is not enforced); cocaine is an illegal substance under state and federal law — it is more addictive, more debilitating, and consequently its possession and distribution are punished more severely in penal statutes.

"So the cases can be distinguished," McCarthy said. "Nevertheless, it would not be unreasonable for the Justice Department to say it needed to rethink prosecution standards for 922(g)(3) in light of the Daniels decision. Of course, the question would then be whether Hunter Biden was being given favorable treatment — i.e., was he being given a pass when the Biden Justice Department would still prosecute similarly situated people? It’s too early to answer that question."

Gun rights activists celebrated the 5th Circuit's opinion, denouncing 18 U.S.C. § 922(g)(3) as an unconstitutional restriction on the Second Amendment. 

However, Higginson warned that "further reductionism" under Bruen "will mean systematic, albeit inconsistent, judicial dismantling of the laws that have served to protect our country for generations." 

"This state of affairs will be nothing less than a Second Amendment caricature, a right turned inside out, against freedom and security in our State," Higginson wrote.

Nadler feuded with Schiff, Pelosi over ‘unconstitutional’ impeachment of Donald Trump

House Judiciary Chairman Jerrold Nadler feuded with Adam Schiff and House Speaker Nancy Pelosi over Trump's 'unconstitutional' impeachment process, a new book claims.