Category: fox-news/politics/judiciary

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

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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.

TOP WISCONSIN REPUBLICAN STANDS BY PROTASIEWICZ IMPEACHMENT THREATS

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.

FORMER WI SUPREME COURT JUSTICE REFUSES TO NAME THOSE INVOLVED IN PROTASIEWICZ IMPEACHMENT PUSH

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

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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."

FORMER WI SUPREME COURT JUSTICE REFUSES TO NAME THOSE INVOLVED IN PROTASIEWICZ IMPEACHMENT PUSH

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.

ETHICS COMPLAINTS OVER WI JUSTICE PROTASIEWICZ'S CAMPAIGN STATEMENTS REJECTED

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

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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.

ETHICS COMPLAINTS OVER WI JUSTICE PROTASIEWICZ'S CAMPAIGN STATEMENTS REJECTED

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.

WISCONSIN SUPREME COURT FLIPS FROM CONSERVATIVE TO LIBERAL CONTROL FOR FIRST TIME IN 15 YEARS

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

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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.

WISCONSIN SUPREME COURT FLIPS FROM CONSERVATIVE TO LIBERAL CONTROL FOR FIRST TIME IN 15 YEARS

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.

WISCONSIN SUPREME COURT ELECTION TURNOUT BREAKS RECORD AS DEM-BACKED CANDIDATE WINS

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

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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.

COURT CUTS DOWN HAWAII KNIFE BAN IN CONTROVERSIAL SECOND AMENDMENT CASE

"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." 

NRA NOTCHES LEGAL WIN IN BATTLE WITH ELECTION COMMISSION OVER HIDDEN DOCUMENTS

"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. 

SUPREME COURT ALLOWS CONTINUED REGULATION OF SO-CALLED ‘GHOST GUNS’

"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. 

FEDERAL JUDGE IN COLORADO BLOCKS LAW RAISING AGE REQUIREMENT FOR GUN PURCHASES

"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

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

Graham blasts Durbin over Garland hearing request before impeachment

Posted on by Edmund DeMarche
Sen. Lindsey Graham, the outgoing chairman of the Senate Judiciary Committee, sent his successor, Sen. Dick Durbin, a letter that seemed to accuse the Illinois Democrat of political gamesmanship over his confirmation-hearing request for Judge Merrick Garland, President Biden's pick to be attorney general.

House Judiciary Committee frames Trump impeachment in new report

Posted on by Sam Dorman
House Judiciary Committee Chairman Rep. Jerrold Nadler, D-N.Y., released a 74-page report Tuesday afternoon describing President Trump as a "clear and present danger" who should be impeached.

AG Barr targeted by House Dem’s impeachment resolution

Posted on by Dom Calicchio
A House Democrat who’s a frequent critic of the Trump administration submitted a resolution Tuesday calling for the impeachment of Attorney General William Barr.