Court of Appeals: Ignore That Whole Leandro Thing
Wed, Dec. 1: Will Floyd McKissick run for Congress? + Berger’s not interested in Biden’s universal pre-K + Mark Meadows cooperates + how the hell is it December already?
» Republican Judges Say Republican Legislators Can Ignore Constitution
Admittedly, my headline’s a bit glib given the heady constitutional issues at stake, but, well, that’s pretty much what the 2-1 decision the Court of Appeals handed down last night says.
Republican judges Chris Dillon and Jefferson Griffin—last seen declaring that racism no longer exists—ruled that Superior Court Judge David Lee had exceeded his authority in ordering the state treasury to transfer $1.7 billion in reserve funds to the State Board of Education and permanently blocked his order from taking effect.
The dissenting judge, Democrat John Arrowood, wanted to issue a temporary stay and questioned why his colleagues countermanded a ruling that didn’t take effect until Dec. 10 without a hearing.
Dillon and Griffin did not say Lee was wrong that the General Assembly’s subpar funding violated the constitutional requirement—handed down by the N.C. Supreme Court in the Leandro decision—that the state provide each child with a “sound basic education.” Quite the opposite, actually. Rather, they said he couldn’t enforce it.
“We have pronounced our judgment,” they wrote. “If the other branches of government still ignore it, the remedy lies not with the courts, but at the ballot box.”
Regardless of your feelings on school funding, Dillon and Griffin’s position isn’t without merit. As they point out, if they allowed Lee’s decision to stand, they’d allow a judge to dictate a power the state constitution explicitly gives to the legislature.
But what I can’t get past—again, school funding aside—is that the court is effectively throwing up its hands. If the General Assembly is violating the state constitution, there has to be a better solution than gee whiz, what can you do? Either the constitution means something or it doesn’t.
You can read the ruling here and the N&O’s story on it here. I would imagine this is headed to the state Supreme Court, where Democrats hold a 4–3 majority.
» McKissick Wants to Run for Congress (But He Might Not)
I spent an hour yesterday talking with former longtime state Sen. Floyd McKissick Jr. about running for Congress. I have no idea if he’s going to run. I don’t think he knows if he’s going to run.
He wants to. He’s wanted to run for Congress for a long time.
He has a team ready to go.
He knows the new Sixth Congressional District—44.5% Durham, 36.5% Wake, 20% Orange, about 20% African-American.
He believes—correctly—that if he got in, he’d be a frontrunner.
But he’s not there yet.
“I a very seriously considering getting into the race, to be candid with you. But I’m one of these people that prefers to be a bit strategic.”
If David Price had announced his retirement earlier, or if he’d known what the district map looked like earlier, or even if he knew that the current district map would be the final district map and the March primary wouldn’t get pushed back by a court ruling in one of the gerrymandering lawsuits, McKissick might have jumped in. But …
“But when you get an announcement, literally at the last minute, they’re drawing maps at the same time, you don’t know if they will change—you know, it puts everything in flux.”
Long story short: McKissick will run if he thinks he can win in a compressed, four-month sprint to Election Day. That depends on the district, who else is running, and especially what the fundraising landscape looks like.
“I’ve seen too many campaigns over the last 20 years where you had really good folks running that were outstanding but ran I saw run out of money in the last two or three weeks.”
So he’ll wait to see the outcome of the pending court cases and decide sometime during the candidate filing period that runs from Dec. 6–17.
McKissick’s theory of the race: Durham County comprises a plurality of the district, and Durham voters have voted for Floyd McKissick for a quarter-century. He was one of the Senate’s most prominent Democrats, which will help him score votes outside of his hometown. (Also, his father and namesake was among the first Black students admitted to UNC Law in 1951.)
McKissick didn’t directly criticize Sens. Valerie Foushee or Wiley Nickel, but he told me he believes Nida Allam, now in her second year as a Durham County commissioner, is too inexperienced.
“I think it’s one thing if you learn to swim and swim a link or two in the pool. It’s another thing if you decide after successfully swimming links in a pool decide you’re ready to swim the Atlantic. I think when you go into Congress, it’s like swimming the Atlantic.”
McKissick’s theory of Congress: McKissick told me he considers himself a “pragmatic progressive”—“someone who really believes in getting things done.” I asked what that would look like if he found himself in the minority.
When Dems were in the minority in the General Assembly, he said, “I got a lot of criminal justice reform bills passed—I mean, things that really radically changed the ability of people to get an expungement in our state.”
The key, he said, was building personal relationships.
But the Republican caucus is likely to be dominated by extremists, I said.
“No, I get it,” he replied. “[But] do you fall into the trap of being just as bad as the Republicans are? Or do you try to negotiate and find some middle ground where you can come together on things like the bipartisan infrastructure bill? I mean, I think that’s a clear example of what Biden was able to accomplish.”
Thirteen House Republicans voted for the infrastructure bill. They faced a fierce backlash from their party. Some received death threats.
» RELATED
The Republicans won the first round of this year’s gerrymandering court fight. Superior Court Judge Graham Shirley, a Republican, denied the NAACP’s request to delay the March primary so that the General Assembly can draw new legislative and congressional districts.
Because the NAACP’s lawsuit focused on the process the NCGA used to draw the maps and not the maps themselves, Shirley said he had no basis to delay the election.
Two other lawsuits challenging the actual districts are still on deck.
» Berger Passes on Universal Pre-K, Thank You Kindly
The current iteration of the Build Back Better package, as the Biden administration will happily tell you, sets aside $110 billion to fund universal prekindergarten for every 3- and 4-year-old in the country—which, assuming it happens, would be a potentially transformative education policy and political boon for the struggling White House.
But there’s a catch: The program relies on states to play along. Some won’t.
Beyond the normal Republican resistance to anything with Biden’s fingerprints on it, the program requires states to pick up additional costs and abide by federal rules governing what pre-K kids learn and who teaches them. Also, as of now, federal funding expires in 2027.
Guess who’s not interested.
From the Washington Post:
In North Carolina, Pat Ryan, a spokesman for state Senate leader Phil Berger (R), said in an emailed statement: “In general, we’re wary of federal policies that have drastic effects on sectors of a state’s economy, especially when those policies come with time-limited federal subsidies that create major uncertainty for state budgets in the out years.” North Carolina has had state-funded pre-K since 2001 and now serves about 1 in 4 of the state’s 4-year-olds, focusing on children from low-income households.
» Mark Meadows Gets Chatty with the 1/6 Committee
Three weeks ago, an attorney for former North Carolina congressman and Trump chief of staff Mark Meadows told the congressional committee investigating the Jan. 6 insurrection that his client wouldn’t talk or turn over documents, citing Donald Trump’s claim of executive privilege.
One criminal contempt of Congress charge for Steve Bannon later, Meadows is singing a different tune. Somewhat.
Mark Meadows, the former White House chief of staff under President Donald J. Trump, has reached an agreement with the House committee investigating the Jan. 6 attack on the Capitol to provide documents and sit for a deposition, the panel said on Tuesday, a stunning reversal for a crucial witness in the inquiry. …
Mr. Meadows’s lawyer, George J. Terwilliger III, also suggested that there were strict limits to his client’s willingness to participate in the inquiry.
“As we have from the beginning, we continue to work with the select committee and its staff to see if we can reach an accommodation that does not require Mr. Meadows to waive executive privilege or to forfeit the longstanding position that senior White House aides cannot be compelled to testify before Congress,” Mr. Terwilliger said in a statement. “We appreciate the select committee’s openness to receiving voluntary responses on non-privileged topics.” (NYT)
The committee wants Meadows to spill the beans about whether he was using a private cellphone on Jan. 6 and see his text messages.
» SPEAKING OF JAN. 6
Trump’s lawyers were in court yesterday defending his executive privilege claim. It didn’t seem to go well for him.
A three-judge federal appeals court panel weighing whether former President Donald Trump can shield his White House records from the House committee investigating the January 6 attack on the Capitol appeared skeptical of Mr. Trump's claims of executive privilege on Tuesday, the latest development in a legal standoff that could ultimately reach the Supreme Court. …
During Tuesday's virtual hearing, attorneys for Mr. Trump argued the federal courts are the proper venue for settling the dispute between the current and former presidents. But Judges Patricia Millett, Robert Wilkins and Ketanji Brown Jackson of the U.S. Court of Appeals for the District of Columbia Circuit questioned whether they have a role in ruling on Mr. Trump's claims of executive privilege if the current president has already waived that right. (CBS News)
If Trump loses, his lawyers will ask the Supreme Court to block the committee’s access to his records.
Trump’s invocation of privilege extends beyond him and beyond those records, of course. Meadows used it to try to wiggle out of testifying. So did Steve Bannon, who wasn’t even a White House employee at the time. And so did Jeffrey Clark, a DOJ official who was the biggest advocate of a coup d’etat, and who will likely be charged with contempt.
The idea was apparently to create a fake rationale for Trump’s vice president to simply declare Joe Biden’s electors invalid, after which friendly states might send alternate electors. That plot was outlined in the now-notorious Trump coup memo.
But the role of Clark was particularly troubling. The report found that Trump and Clark personally communicated before Clark undertook extraordinary actions on Trump’s behalf.
These included an effort to send official Justice Department letters to swing states declaring that the department was examining election problems and advising state legislators to consider appointing new electors. That was thwarted by Rosen and other officials, but it was an extraordinary abuse of power.
Subsequent to that, Clark reportedly informed Rosen that Trump had offered to install him in Rosen’s place, presumably amid Trump’s anger over Rosen’s rebuffing of his corrupt designs.
The question is, to what degree did Trump and Clark elaborate this scheme in their own conversations? (WaPo)
Meanwhile, the Guardian reported yesterday that just before the Jan. 6 attack, Trump made phone calls from the White House to his advisers to discuss ways to delay Joe Biden’s certification as president.
The former president’s remarks came as part of strategy discussions he had from the White House with the lieutenants at the Willard – a team led by Trump lawyers Rudy Giuliani, John Eastman, Boris Epshteyn and Trump strategist Steve Bannon – about delaying the certification.
Multiple sources, speaking to the Guardian on the condition of anonymity, described Trump’s involvement in the effort to subvert the results of the 2020 election.
Trump’s remarks reveal a direct line from the White House and the command center at the Willard. The conversations also show Trump’s thoughts appear to be in line with the motivations of the pro-Trump mob that carried out the Capitol attack and halted Biden’s certification, until it was later ratified by Congress.
This is what the executive privilege claim seeks to shield from public view.
» Four Other Headlines
Mandy Cohen, North Carolina’s patron saint of the pandemic, is stepping down as secretary of health and human services. Some dude named Kody will replace her. (N&O)
Three people, apparently high school students, were killed in a shooting at a high school just north of Detroit. The alleged killer is 15. (NYT)
A Trump-appointed federal judge blocked the Biden administration from forcing health care workers in 10 states to be vaccinated. (CBS News)
The Taliban overran Afghanistan. But now foreign governments have pulled out, and the country’s economy is in freefall. The dog caught the car. (WaPo)