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Prosecutors lay out sprawling sedition case against Oath Keepers

Federal prosecutors on Monday laid out their sprawling case against Oath Keepers leader Stewart Rhodes and four other members of the far-right militia as it brings rarely used seditious conspiracy charges in one of its most high-profile trials against those who stormed the Capitol on Jan. 6, 2021.

Rhodes is on trial alongside Oath Keepers Kelly Meggs, Kenneth Harrelson, Jessica Watkins and Thomas Caldwell, each accused of conspiring to use force to overthrow the government — a crime that carries a sentence of up to 20 years in prison. 

“They concocted a plan for an armed rebellion to shatter a bedrock of American democracy,” Assistant U.S. Attorney Jeffrey Nestler told jurors at the U.S. District Court for the District of Columbia.

Nestler said the group broke a 200-year tradition and “banded together to do whatever was necessary, up to and including the use of force” to prevent the peaceful transition of power from former President Trump’s administration to President Biden’s.

Monday’s opening argument set the scene for a case expected to stretch for more than a month that will detail the two months of planning leading up to Jan. 6 and the days after, including direction from Rhodes to his followers to delete any incriminating evidence of their time in the Capitol.

The government’s presentation showed Oath Keepers members undergoing training for the Capitol that day, displaying messages from Watkins that she needed her crew to be “fighting fit.” Prosecutors also showed footage of the group using a “stack formation” to enter the Capitol, playing messages of members bragging about making it into the building and tangoing with police.

Rhodes never entered the Capitol that day, instead directing Oath Keepers “like a general overlooking the battlefield.”

The seditious conspiracy statute under which the government is bringing charges was crafted following the Civil War. It has since been used infrequently and often unsuccessfully. The five defendants are also facing charges for conspiring to obstruct Congress and destruction of government property, among other charges.

Attorneys for Rhodes have argued that Oath Keepers were standing ready if Trump invoked the Insurrection Act, which allows the president to call upon the military and National Guard to quell a rebellion.

Phillip Linder, an attorney for Rhodes, sought to portray Rhodes as taking lawful, if unpopular, actions that day.

Linder asked jurors to “hold yourself to the burden of proof.”

“You may not like some of the things you hear and that our clients did but the evidence we show our clients did nothing illegal. Even if it looks inflammatory, they did nothing illegal,” he said. 

Attorneys for the group each portrayed their clients as being in town to attend rallies and serve as security for some speakers.

The government anticipated that argument, with Nestler saying it was “a little suspect” given that Oath Keepers are not licensed, trained or paid for their work as security guards.

“Even being bad security guards isn’t itself illegal,” Nestler said, but planning to overthrow the government is. 

Attorneys for both the government and the defendants spent ample time discussing the group’s Quick Reaction Force staged at a Virginia hotel, with DOJ showing members of the group bringing in suitcase after suitcase of weapons and supplies.

The QRF was chosen for its proximity to D.C., the government said, allowing Oath Keepers to quickly get more weapons to the Capitol if needed, including even by river if necessary. 

Linder said Rhodes “did not have violent intent that day” and “left his weapons behind.” 

His messages to supporters complaining that Vice President Mike Pence would not back Trump, his open letters to the then president, “were nothing more than free speech and bravado,” Linder said. 

David Fischer, an attorney for Caldwell, said the group has Quick Reaction Forces for many of their events and “the real reason they had QRF in Virginia was because its legal to have weapons in Virginia.”

“They didn’t bring weapons into DC because it’s illegal to have them in D.C.,” he said.

But the government dismissed that. 

“Each of them drove rather than flew to the D.C. area so they could bring their weapons of war with them,” Nestler said.

Updated 3:49 p.m.

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Supreme Court weighs redefining clean water regulations

The Supreme Court on Monday weighed whether to limit the scope of the country’s clean water regulations in a case that could have a far-reaching impact on the nation’s water quality. 

The fairly technical argument, which dealt with the Clean Water Act’s regulatory reach over wetlands, did not clearly telegraph how the court would rule. Its most conservative and liberal members appeared to stake out opposite ends of the debate, however, while several other justices seemed more difficult to read.

The case stems from a 2007 property dispute, in which Idaho landowners Michael and Chantell Sackett were told they needed a federal permit to build a home on land they owned because it supposedly contained regulated wetlands.

Now, 15 years later, the couple is arguing that the way that the federal government views regulated wetlands is too broad. 

While the court did not project a clear outcome during its questioning, the 6-3 conservative majority court has a history of looking skeptically at the federal government’s claim of regulatory authority over the environment when its powers are not clearly defined by law. 

In the first argument of the court’s new term, the three most conservative justices seemed inclined to pare back the government’s environmental authority, while the court’s three more liberal members appeared to favor an expansive view. Some of the other justices sent mixed signals about how they might rule in the case. 

Conservative Justice Brett Kavanaugh asked particularly tough questions of the Sacketts’s lawyer, Damien Schiff. 

In arguments that at times focused on when a wetland can be considered “adjacent” to regulated waters, he took issue with the lawyer’s insistence that this referred to waters that are “touching” rather than “neighboring.”

Kavanaugh described “neighboring” as the “ordinary dictionary definition of adjacent.”

When Schiff responded that the statute appears to be referring to waters that are touching, Kavanaugh noted that a series of previous administrations, Republican and Democrat alike, took a broader view of adjacency. 

“Why did seven straight administrations not agree with you?” he asked the lawyer. 

Chief Justice John Roberts and Justice Amy Coney Barrett also appeared to ask tough questions of both sides. 

In her debut on the bench, Justice Ketanji Brown Jackson, who is expected to round out the court’s liberal wing, used several questions to tether the more abstract legal debate to the underlying purpose of the Clean Water Act, which turns 50 this month.

She aimed a sharp line of inquiry at a lawyer for the land owners, who urged the court to narrow the government’s authority over wetlands to extend only to those with a continuous surface connection to U.S. waters.

“You say the question is which wetlands are covered, which I agree with,” she said. “But I guess my question is, why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical and biological integrity of the nation’s waters?”

Under the current system, many polluters are also not necessarily blocked from carrying out activities in regulated waters. Instead, they may need to either apply for a permit that contains stipulations that they follow environmental safeguards, or follow existing stipulations in a “general permit” that gives a blanket waiver to certain activities.  

But environmentalists say that while pollution still occurs when permits are in place, the stipulations they offer are important for averting the worst damages.  

In seeking to preserve the requirement for permits to carry out activities in certain wetlands, Justice Department lawyer Brian Fletcher argued that whether protections apply can be determined by a “significant nexus” test. 

Fletcher said that this includes factors such as distance, flow, an area’s hydrology and the presence of other wetlands. 

In a prior court decision, three of the court’s conservative justices, Roberts, Samuel Alito and Clarence Thomas, previously backed a separate, more stringent test that instead said that wetlands should have a “continuous surface water connection.”

But, Schiff argued in favor of a separate test that may be even more difficult to achieve — saying that waters like wetlands could also be regulated if they can support interstate commerce. 

The case comes at a time of heightened liberal distrust in the court, especially following its high profile decision to overturn Roe v. Wade.

 The court has also recently taken a conservative, deregulatory position  in a case where it limited the scope of the EPA’s ability to regulate power plants’ contribution to climate change. 

Source: TEST FEED1

Supreme Court turns away challenge to ban on gun 'bump stocks'

The Supreme Court on Monday declined to hear a challenge by Second Amendment advocates to the Trump-era ban on “bump stock” devices that modify semi-automatic rifles to fire more rapidly.

The court’s move leaves intact the federal ban that was enacted in 2017 after a gunman in Las Vegas used the rapid-fire accessory in the deadliest shooting in modern U.S. history.

The court’s denial of two separate petitions dealt a blow to the challengers, which included the Second Amendment group Gun Owners of America and a Utah gun lobbyist.

The move comes after the conservative majority Supreme Court electrified Second Amendment advocates in June by voting 6-3 along ideological lines to expand the right to carry a gun outside the home for self-defense.

However, the court had previously declined to take up a separate legal effort by gun rights groups in 2020 to overturn the bump stock ban.

The Trump-era prohibition was put in place by the Bureau of Alcohol, Tobacco and Firearms after gunman Stephen Paddock used the device to kill 58 people and wound hundreds during a Las Vegas concert, before killing himself.

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Jackson is active questioner as she hears first argument as Supreme Court justice

Ketanji Brown Jackson, the Supreme Court’s newest justice and the first Black woman to hold the position, proved one of the most active questioners on the bench Monday during her first argument at the High Court as the justices kicked off a new term.

Bedecked in the customary black robe, Jackson occupied a seat at the far end of the bench, in keeping with the court’s traditional seating arrangement based on seniority, with Chief Justice John Roberts at the center.

Jackson, a former judge on two lower federal courts in Washington, is expected to round out the court’s three-member liberal wing on a bench now dominated by six Republican-appointed justices pursuing an aggressive conservative legal agenda.

The court opened its term with a major environmental dispute over the federal government’s reach in protecting the nation’s waterways under the Clean Water Act.

Jackson took her turn among the justices in posing questions to the lawyers who argued the dispute between the Environmental Protection Agency and Idaho landowners. The landowners have urged the court to narrow the government’s authority over wetlands to encompass only those with a visible surface connection to U.S. waters.  

“You say the question is which wetlands are covered, which I agree with,” she told a lawyer for the property owners. “But I guess my question is, why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical and biological integrity of the nation’s waters?”

The tenor of Jackson’s questions hewed closely to the purpose of the Clean Water Act, which turns 50 this month, and the underlying facts of the dispute.

As the court’s only former public defender, Jackson is expected to bring a unique perspective to her new role, though she will not fundamentally alter the court’s conservative tilt. 

She fills the seat vacated by Justice Stephen Breyer, for whom she once clerked, following his retirement this summer and a grueling Senate confirmation process earlier this year. 

Jackson, responding to a question during her Senate confirmation hearing in March, said her judicial methodology cannot be easily defined — a sharp departure from the Supreme Court confirmation of Justice Amy Coney Barrett, who labeled herself an “originalist” who would approach the task “in the mold of Justice Scalia.”

Shying away from “a particular label” to define her style, Jackson said she adheres to a methodology that begins with assuming a position of neutrality, proceeds with various interpretive tools toward a transparent ruling “without fear or favor,” and studiously abides by judicial constraints.

Source: TEST FEED1

Supreme Court declines to hear MyPillow CEO appeal in defamation case

The Supreme Court on Monday declined to hear an appeal from MyPillow CEO Mike Lindell as he fights a defamation suit from a voting machine company he said rigged the 2020 presidential election against former President Trump.  

Dominion Voting Systems, which manufactures machines used to administer elections in several states, sued the Trump supporter over his claims, and the Supreme Court’s decision not to hear the case means the defamation lawsuit can move forward. 

The $1.3 billion lawsuit alleges Lindell harmed the manufacturer’s brand by promoting claims it skewed the election toward now-President Biden. 

Lindell is a prominent Trump ally and has been steadfast in his unsubstantiated assertions that the 2020 election was stolen from the former president.

Dominion is also pursuing legal action against former Trump lawyers Sidney Powell and Rudy Giuliani for their false claims that the 2020 election was stolen, but the pair were not involved in Lindell’s appeal to the Supreme Court. 

Lindell’s request to dismiss the case was decline by a lower court in August, and the Supreme Court’s decision not to hear his appeal means the lawsuit can proceed. 

Source: TEST FEED1

Supreme Court declines to hear case on DOJ 'filter teams' used in Trump search

The Supreme Court on Monday declined to hear a case about whether the Justice Department (DOJ) can use “filter teams,” such as the one enlisted by the DOJ to begin a review of evidence collected at former President Trump’s home in Mar-a-Lago to determine whether they are privileged.

The Justices denied a writ of certiorari in Korf v. United States, which questioned the legality of “filter team” protocols that allow teams of federal prosecutors and agents not assigned to a given case to review seized documents claimed to be privileged before the privilege question has been resolved.

The DOJ used a filter team to begin a review of the evidence collected during the execution of a search warrant at Trump’s Mar-a-Lago residence before Trump successfully pushed for a “special master” to review the documents he said were privileged.  

FBI agents at the Palm Beach, Fla., resort recovered classified documents taken from the White House and kept past the end of Trump’s time in office.

The former president’s defenses for how and why the documents ended up at Mar-a-Lago has shifted, but one of his claims stymying DOJ review of the materials is that the documents contain privileged information.

In Korf, a “filter team” of DOJ attorneys reviewed materials seized during an investigation before a court had responded to claims of privilege on those documents.

The United States Court of Appeals for the 11th Circuit allowed the protocols to proceed without requiring the filter team to show that an exception to privilege may have applied to the documents.  

Source: TEST FEED1

The Hill's Morning Report — The Supreme Court will tackle these issues in new term

The Supreme Court begins a new term today and court watchers suggest we should fasten our seat belts.

The six Republican-appointed justices are expected this term to pick up where they left off amid high-stakes deliberations over challenges to voting rights, religious freedom, LGBTQ rights, affirmative action at universities and gerrymandered congressional districts, reports The Hill John Kruzel. 

Thirty-six days ahead of the midterm elections and 100 days after the Supreme Court’s decision to send abortion rights law to 50 states, justices are painfully aware that public trust in the high court — the only enforcement mechanism it possesses — is at an all-time low (NBC News, The Hill and The Washington Post).

“If, over time, the court loses all connection with the public and the public sentiment, that’s a dangerous thing for democracy,” Justice Elena Kagan said in July, assuring attendees at a legal conference that she had no specific Supreme Court ruling(s) in mind. “We have a court that does important things, and if that connection is lost, that’s a dangerous thing for the democratic system as a whole.”

The high court’s rightward trajectory and the pronounced pubic belief that abortion should be legal in nearly all circumstances are political talking points for President Biden and Democratic candidates who want to retain power after November. For conservatives, the court’s last term was the fulfillment of a long-term GOP project to remake laws and overturn Supreme Court decisions they argue were wrongly decided. Some moderate Republican candidates say they worry that the abortion controversy will cost their party in voter turnout, fundraising and backing from some business leaders.

Vox reports that democracy itself is on the docket this term. The Washington Post runs through details of the cases coming before the 6-3 court, which now includes Biden-nominated Justice Ketanji Brown Jackson, who succeeded the now-retired Justice Stephen Breyer.

Time magazine points to the court’s internal strains as Chief Justice John Roberts, with his preference for moderation and concern that the Supreme Court is increasingly seen as a partisan arm of government, lost control of the majority. There are calls for Justice Clarence Thomas to recuse himself from election-related matters amid accounts of the efforts made by his activist wife, Virginia “Ginni” Thomas, who told members of Congress that she believes a narrative, despite a lack of evidence, that results of the 2020 election were rigged and should have been overturned.

▪ The New York Times: As the new term starts, the Supreme Court is poised to resume a rightward push.

▪ Bloomberg News: The Supreme Court is about to display its power imbalance again.

Related Articles

▪ The Hill: Supreme Court to hear case that could have massive impact on U.S. water quality.

▪ Bloomberg Law: Racial gerrymandering meets voting rights in Supreme Court clash.

▪ The New York Times: Top state judges make a rare plea in a momentous Supreme Court election law case.

▪ The Hill, opinion: Expect fireworks from the Supreme Court’s 2022-2023 term.

▪ NBC News: After COVID-19 precautions, the high court partially reopens to the public.

LEADING THE DAY 

➤ STATE WATCH & DISASTER RESPONSE

The destruction in Florida from Hurricane Ian is so vast that officials on Sunday continued to size up community needs, account for the missing and estimate resources necessary to recover.

It will take years to rebuild in some counties.

The president and first lady Jill Biden will visit Florida on Wednesday after flying to Puerto Rico today to survey damage from Hurricane Fiona, which killed at least 25 people.

Ian, the massive storm that followed Fiona, is responsible for at least 76 confirmed deaths in Florida and four in North Carolina as of this morning (CNN). Officials warned that fatalities could continue to climb (The Washington Post). More than half of all storm-related deaths in Florida as of the weekend were in Lee County, which includes Fort Myers, Cape Coral and Sanibel. The New York Times reported that county officials delayed issuing an evacuation order ahead of the storm, a decision that state officials promised to probe.

Sanibel Island Mayor Holly Smith told ABC News on Friday of four known fatalities. “This is going to be a very long recovery process,” she said, noting that a section of the only causeway was demolished. “But right now, [the plan is] getting everybody off that island and to safety. It is not habitable.” 

Flood waters in some areas rose over the weekend despite clear skies. Saturated ground slowly pushed water into homes and streets that had been passable in the hours and days after the initially Category 4 storm blew itself out by crossing the state and meandering northeast through the Carolinas.

As of this morning more than 627,000 customers in Florida remain without power and many people were without water or internet service on Sunday, complicating efforts to do just about everything, including restore communications, sewage systems and distribute sandbags to vulnerable properties accessible now only by motor boat or kayak. Retirement facilities are struggling with flooding. A hospital without water remained a sanitation hazard on Sunday.

“We worry a lot about the direct impacts from the storm itself as it is making landfall, but we see so many more injuries and sometimes more fatalities after the storm,” Federal Emergency Management Agency Administrator Deanne Criswell told “Fox News.”

“People need to stay vigilant right now,” she added. “Standing water brings with it all kinds of hazards — it has debris, it could have power lines, it could have hazards in there that you just don’t know about.”

The FEMA chief assured people Sunday that federal help will be available to the broadest possible definition of those in need. “We’re going to support all communities,” Criswell said. “I committed that to the governor, I commit to you right here that all Floridians are going to be able to get the help that is available to them through our programs” (The Hill).

Florida Sen. Marco Rubio (R) told ABC’s “This Week” that lawmakers would seek additional funding for hurricane relief to assist people to get back on their feet. “What we’re going to ask for Florida is what we supported for every other state in the country that’s been affected by natural disasters, and that’s emergency relief designed to be sent immediately to help the people affected now,” Rubio said (The Hill).

The senator and Republican Gov. Ron DeSantis of Florida, reacting to criticism that they voted against hurricane relief for Northeastern states after Hurricane Sandy in 2012, say they objected at the time to pork spending and unrelated add-ons backed by Democrats (The Hill). Both are up for reelection and each is eyed as a future potential presidential candidate.  

Reuters: Elon Musk to provide Florida with Starlink satellites to improve communications in response to Hurricane Ian.

IN FOCUS/SHARP TAKES

➤ POLITICS & VOTERS

With 36 days until election day, early voting is underway in several states.

Voters in Illinois and Michigan have been casting ballots since Thursday, and certain voters are eligible for early voting in South Dakota, Wyoming, Minnesota, Virginia, New Jersey and Vermont (The New York Times).

As the election nears, the battle for control of the Senate is likely coming down to four key states, writes The Hill’s Al Weaver. In Nevada and Georgia, two Democrats are trying to hold on to their seats; in Pennsylvania and Wisconsin, Republicans are seeking to keep one open seat and save a vulnerable incumbent.

While these four states are not the only competitive contests, both parties view them as focal points and the races where they’ll likely see a shift in power.

The Cook Political Report only rates Nevada, Georgia and Wisconsin in the toss-up category, but Pennsylvania is likely to follow after Republican Mehmet Oz’s surge in the polls last month against Lt. Gov. John Fetterman (D).

A string of polls shows Fetterman with a narrow lead of between 2 and 5 points within the margin of error. In August, an average of polls from Real Clear Politics gave Fetterman an average lead of 9 points.

This development comes as he faces growing scrutiny over his health, Republicans attack him on his law enforcement record as lieutenant governor and Oz racks up notable endorsements, writes The Hill’s Julia Manchester. While Fetterman’s allies say the recent polling is the result of Election Day approaching, it also raises the stakes for the Democratic candidate as he looks to maintain his lead ahead of a crucial debate against Oz later this month. 

In Wisconsin, Democrat Mandela Barnes trails Sen. Ron Johnson (R) by 5 points (51 percent to 46 percent) in a new poll conducted for the AARP.

In Nevada, former Attorney General Adam Laxalt leads Sen. Catherine Cortez Masto (D) by 2 points (45 percent to 43 percent), according to a poll from The Nevada Independent.

And in Georgia, Republican Herschel Walker trails Sen. Raphael Warnock (D) by 4 points (47 percent to 43 percent), according to a Fox News poll.

▪ Axios: Democrats have problems in Wisconsin and Pennsylvania in Senate races.

▪ The Philadelphia Inquirer: The Pennsylvania Senate race is tight as Oz closes on Fetterman.

▪ NBC News: Nevada Democrats see signs of nightmare scenario: Latino voters staying home.

▪ Politico: Georgia and Nevada on their minds: Senate watchers sweat two swing states.

▪ The New York Times: The racial divide Republican Senate candidate Herschel Walker of Georgia couldn’t outrun.

“It’s up for grabs at this point,” Sen. Dick Durbin (D-Ill.) told The Hill. “Every race we’re in the margin of error, which means the next six weeks can easily decide it.”

The Hill’s Ben Johansen rounded up key upcoming Senate debates, including those in Georgia, Pennsylvania, Ohio and Wisconsin.

Senate Democrats are favored to keep their majority, recent polling shows, but Democrats are worried the polls may be flawed in their favor, writes The Hill’s Alexander Bolton, signaling a possible repeat of 2016 and 2020. But lawmakers acknowledge the political environment looks much better for their chances since the Supreme Court struck down Roe v. Wade in June, ending the national right to abortion. 

“Confident would not be the word. Optimistic is the word,” Sen. Tim Kaine (D-Va.) said. “I think it’s going to be a late election night.” In 2016, polling indicated Kaine, who was Hillary Clinton’s running mate, would become the vice president.

▪ New York Magazine: Why are pollsters disagreeing about the 2022 midterms?

▪ The Washington Post: GOP sees path to Senate majority through Nevada and Georgia amid spending boost.

▪ FiveThirtyEight: Five reasons for Democrats to still be concerned about the midterms.

▪ NBC News: GOP cuts into Democrats’ lead among Latino voters.

Republicans are hoping that Colorado Senate candidate Joe O’Dea’s decision to distance himself from the more extreme elements of the party will help them pull off a win in what some hope could be a sleeper race come November, writes The Hill’s Caroline Vakil. O’Dea, a construction company executive running to unseat Sen. Michael Bennet (D-Colo.), has come out in support of some abortion rights while also bucking his party by suggesting former President Trump shouldn’t run in 2024. The GOP argue O’Dea’s branding himself as a moderate will help appeal to critical voting blocs in the state, even though he still faces an uphill climb. 

The Hill: GOP prospects dim in New Hampshire Senate race.

The Hill’s Max Greenwood identifies five key ballot measures to watch for in November: abortion rights, marijuana policy, election reform, climate change and the environment, and slavery. According to Ballotpedia, 137 statewide ballot measures have been certified for the ballot in 37 states this year.

In November, voters in 36 states will decide on 129 statewide ballot measures, while voters in Louisiana will decide on three on Dec. 10. Elsewhere, voters in four states decided on five ballot measures earlier in the year — three were approved and two were rejected.

Four states will vote on ballot initiatives in November, according to data from the Kaiser Family Foundation.

▪ The Hill: Progressives search for their next Sens. Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.).

▪ The Hill: Ranking Trump and the top seven GOP White House contenders.   

Meanwhile, The New York Times uncovered new information about DeSantis’ migrant flights last month. Venezuelan asylum seekers in Texas were recruited for the flights by a former DeSantis’ aide, Perla Huerta, a woman reported to be a former Army medic and counterintelligence agent. The airline charter company DeSantis used, Vertol Systems, has ties to both the governor and Rep. Matt Gaetz (R-Fla.).

Huerta approached migrants near shelters in San Antonio, Texas, The Times reports, and they were flown by charter aircraft to Martha’s Vineyard, Mass., using Florida public funds.

OPINION

■ You thought the Supreme Court’s last term was bad? Brace yourself, by Ruth Marcus, deputy editorial page editor, The Washington Post. https://wapo.st/3rpmsG4 

■ Ian is a wake-up call on the real costs of climate paralysis, by Lara Williams, social media editor, Bloomberg Opinion. https://bloom.bg/3SNHjhH

WHERE AND WHEN

The House meets at noon on Tuesday for a pro forma session. Members are scheduled to return to the Capitol Nov. 14.

The Senate convenes Tuesday at 10 a.m. for a pro forma session. Senators also are scheduled to return for work on Nov. 14.  

The president and first lady Jill Biden this morning will travel to Puerto Rico to meet with officials and residents affected by Hurricane Fiona. They will visit Florida on Wednesday to discuss the devastation left by Hurricane Ian.

Secretary of State Antony Blinken is traveling in Colombia. He will join President Gustavo Petro and Colombian Foreign Minister Álvaro Leyva in Bogota for a working lunch at 1:10 p.m. local time. He will hold a joint press conference with Petro in the afternoon. The secretary will tour Fragmentos Museum and speak during a signing ceremony to support the comprehensive implementation of the Ethnic Chapter of the 2016 Peace Accord with Colombian Vice President Francia Márquez at 4:15 p.m.

Economic indicator: The Institute of Supply Management report on manufacturing in September will be released at 10 a.m.

🖥 Hill.TV’s “Rising” program features news and interviews at http://thehill.com/hilltv, on YouTube and on Facebook at 10:30 a.m. ET. Also, check out the “Rising” podcast here.

ELSEWHERE

➤ INTERNATIONAL

The narrative in the West about President Vladimir Putin’s war with Ukraine is that he is failing and is desperate to tell Russians otherwise, including through an annexation plan, described in Kyiv, European capitals and Washington as illegal, a scam and a farce.

As Putin on Friday declared four Ukrainian regions annexed under referendums and suddenly part of Russia, troops under the Kremlin’s command retreated from the eastern Ukrainian city of Lyman, which was supposed to be part of Moscow’s annexation victory, after being encircled by Ukrainian forces.

The Washington Post: Both houses of Russia’s rubber-stamp parliament were expected to pass annexation documents covering Ukrainian regions today and Tuesday.

President Volodymyr Zelensky in Kyiv said events in Lyman dramatically contradicted Putin’s claims. “When the Ukrainian flag is returned, no one remembers the Russian farce with some pieces of paper and some annexations,” he said over the weekend (The New York Times).

During their withdrawal from liberated Lyman, Russians abandoned military vehicles in streets and bodies of soldiers on the roads into town. The Times reported that it was apparent on Sunday that Ukraine was determined to rid the town of occupiers as soldiers and police patrolled the streets.

The Wall Street Journal: Ukrainians rejoiced the hasty exit of Russians from Lyman and helped themselves to Russian supplies. 

The attempted Russian seizure of territory was condemned by the United States, the United Nations and global sanctions have been urged. Former CIA Director and retired Gen. David Petraeus said bluntly on Sunday that Putin “is losing.”

“No amount of annexation, no amount of even veiled nuclear threats can get him out of this situation,” he told ABC’s “This Week.” “He’s going to continue to lose on the battlefield,” he predicted, pointing to Russia’s recent retreat from a strategic hub in eastern Ukraine. Mounting sanctions are another complication for Russia, he added.

In Ukraine, one lawmaker and member of parliament told CNBC today that his government will not negotiate with Russia unless it agrees to withdraw all its troops from Ukrainian territory.

“Ukraine is ready for negotiations at any moment, but negotiations about what? About the retreat of Russian troops from our territory? Sure,” Oleksiy Goncharenko said. “But Putin is not going to do this. He claimed that the territories he invaded are Russian, so clearly he has chosen the way of escalation and that’s why the only answer is on the battlefield and Ukraine is doing this.”

▪ The Guardian: Petraeus: U.S. would destroy Russia’s troops if Putin used nuclear weapons in Ukraine.

▪ The New York Times: Putin’s repeated threats to use nuclear weapons as part of the war with Ukraine are being gamed out by U.S. officials, who gauge the risks of the Russian president’s follow-through as low.

▪ Medill News Service: What exactly is a low-yield nuclear weapon?

▪ The Washington Post: Two Americans, who fought for Ukraine and were captured, describe months of Russian beatings and interrogation.

▪ Le Monde: In the face of Putin’s difficulties, Marine Le Pen, France’s far-right leader of the National Rally parliamentary group, reinforced her criticisms of Europe.

In Indonesia on Saturday, a stampede at a soccer stadium killed 125 people and left more than 320 injured after police used tear gas to stop fans from rushing the field (Reuters). According to The New York Times, “Police officers began shooting tear gas canisters into the crowd and beating fans with batons, witnesses said, and in a rush to flee the stadium fans piled up against narrow exits, crushing each other.”

In Brazil, left-wing presidential candidate Luiz Inácio Lula da Silva will face far-right incumbent Jair Bolsonaro in a runoff election on Oct. 30 after neither candidate secured an outright win in Sunday’s first round of voting. Bolsonaro, who has been nicknamed the “Trump of the Tropics” has often discredited the Brazilian electoral system and threatened to not accept its results (CNN).

The U.K. government on Monday reversed one aspect of its new tax policy, abandoning plans to do away with a top tax rate on high-income earners. The change follows widespread criticism of Prime Minister Liz Truss’ sweeping new economic plan, which sent the British pound plummeting and prompted intervention from the Bank of England last week to stop a financial market revolt. Truss said in September that the United Kingdom would borrow billions to pay for tax cuts and spending to insulate consumers from soaring energy bills (The Washington Post).

“We listened to people, and yes, there is some humility and contrition,” Kwasi Kwarteng, the new chancellor of the Exchequer, or finance minister, told BBC Radio. “And I’m happy to own it.”

The New York Times: How the U.K. finance minister came to ignore finance experts.

➤ POX, PANDEMIC & HEALTH 

Half of U.S. adults have heard little to no information about the new COVID-19 booster vaccines, according to a new Kaiser Family Foundation report. Federal authorities authorized the vaccines in late August, well ahead of possible fall and winter virus surges (The New York Times). 

“America is not rushing out to get the new booster,” Drew Altman, the president of the Kaiser Family Foundation, told the Times. “Most are only dimly aware of it, which is not surprising in a country that seems to have mostly moved on. The exception may be older folks, who are at greater risk and early on are more interested in the new booster.”

Information about booster shots and COVID-19 vaccine access can be found HERE.

▪ The New York Times: Physician burnout has reached distressing levels, new research finds.

▪ CNN: Long COVID: What science has learned about the loss of smell and taste.

Total U.S. coronavirus deaths reported as of this morning, according to Johns Hopkins University (trackers all vary slightly): 1,059,605. Current average U.S. COVID-19 daily deaths are 325, according to the Centers for Disease Control and Prevention.

➤ SECURITY, CYBER & TECH

Members of Congress in both parties are experiencing a surge in threats and confrontations as a rise in violent political speech has increasingly crossed over into the realm of in-person intimidation and physical altercation, according to The New York Times. Since lawmakers and the vice president came within feet of rioters during the attack on the Capitol, Republicans and Democrats have reported instances of stalking, armed visits to their homes, vandalism and assaults.

Officials warn the U.S. is facing a shortage of election workers ahead of the midterms due to a rise in threats against them, The Hill’s Ines Kagubare reports. Experts link the threats to false claims of widespread fraud in the 2020 election. 

▪ CBS News: Kim Wyman, the Cybersecurity and Infrastructure Security Agency election security chief, warns of the impact of threats to poll workers.

▪ The Hill: Talya Parker, a Google privacy engineer, is the embodiment of rare diversity in the cybersecurity workforce and founder of “Black Girls in Cyber.” During a recent interview, she spoke about visually being one of a few or the only Black women in the room. 

THE CLOSER

And finally … Back in offices after COVID-19 precautions and with children who have returned to classrooms, Americans are facing higher prices for pet feed and care, and their own rising housing costs. The result: a mad dash to return small pets to shelters and sanctuaries.

“It’s important for the public to come back in droves to shelters,” said Christa Chadwick, the vice president of shelter services at the American Society for the Prevention of Cruelty to Animals. “Whether it is for cats or dogs or chickens or hamsters.”

Backyard chickens and ducks, guinea pigs, gerbils and lizards, even fish are being surrendered by families — although the gloomy predictions of a boomerang of dogs and cats sent back to shelters has not been documented (one hypothesis is that psychological attachment is greater with dogs and cats), reports The New York Times. 

Small-animal surrenders, on the other hand, surged by more than 50 percent nationwide in the first six months of this year, compared with the same period in 2021, according to Shelter Animals Count.

“It’s a crisis that people are abandoning these animals,” said Bill Crain, who runs Safe Haven Farm Sanctuary in Poughquag, N.Y., and has aviaries currently filled with 98 rescued fowl.

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Progressives hunt for new, younger leaders post-Sanders-Warren era

Progressives are on the quiet hunt for a new generation of leaders, eagerly awaiting the outcome of the midterms to plot their next steps. 

“We’ve been talking about fresh blood for years,” said one Democratic strategist who reluctantly supported President Biden in the 2020 election. “Years! And every time we go back to the dinosaurs because we say we have nothing better.”  

Progressives’ two biggest national fixtures — Sens. Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.) — themselves aren’t young and some in the party are ready for a blank canvas in 2024 or beyond, particularly if Biden decides not to seek reelection or if November’s outcome is less than favorable for their side. 

There was a nascent effort this spring by close allies to prop up Sanders, 81, as an alternative if Biden doesn’t run and a leaked memo surfaced with talking points about his possible future plans.  

Sanders didn’t shut down the idea of competing for the Democratic presidential nomination for a third time, saying this week in an interview with CBS News: “I haven’t made that decision.” 

But many Democrats are hesitant if not outright hostile to the prospect of nominating a man older than the sitting president to compete against what’s expected to be a close presidential race in a divided country. 

“We should be finding ways to elevate some rising stars in the party who have been crowded out by people like Bernie,” another Democratic strategist said, making the case that an overhaul is needed when the top figures of the party are in their 70s and 80s. 

Biden has repeatedly said he plans to campaign for a second term, but that hasn’t stopped Democrats from looking around to see who could fill the progressive lane. If Sanders doesn’t do it, the question of who steps in becomes more puzzling. 

Warren is quite a bit younger than her fellow Senate liberal and represents something that progressives want on their slate: gender diversity. 

She has reinserted herself into the political debate recently through Biden’s student loan forgiveness policy, which she helped champion alongside Senate Majority Leader Charles Schumer (D-N.Y.). 

But while Warren, 73, was popular with many women and college-educated voters in 2020, she failed to get the kind of traction that Sanders did in the Democratic primary, including with working class and Black voters. 

Her distant finishes in several early primary contests deflated the momentum that she enjoyed earlier into the cycle, coming in at fourth place in New Hampshire, which borders her home state of Massachusetts.  

Those shortcomings contribute to the view by some in the party that voters clearly want another choice. 

“Women of all ages don’t see themselves reflected or considered in the decisions being made politically or policy wise, so they definitely want something to change,” said Nayyera Haq, a former Obama administration official.  

“As a geriatric millennial with two kids and a mortgage, I also wonder when I’ll have the opportunity to vote for someone closer to my generation,” Haq said. “My parents had that option with Bill Clinton, G.W. Bush and could vote younger with Obama. This idea that a candidate gets your lived experience is very compelling for voters.”  

Enter another possibility: Pete Buttigieg, who took voters by surprise in Iowa and New Hampshire, where he came in first and second place respectively. 

Biden, his former rival, ultimately selected the 40-year-old to be Transportation secretary, allowing him to travel around the country promoting the infrastructure bill ahead of the midterms. 

But there’s one problem that many progressives are eager to point out with Mayor Pete: They don’t claim him as their own.  

Many sympathetic to the Sanders-Warren faction of the party saw Buttigieg last cycle as Biden-lite, as too moderate for their liking and as someone who represents the old guard’s ideology, if not age. 

That sentiment is still alive and well in some progressive pockets. 

“I don’t think you’re ever going to be able to get the Bernie movement, Warren movement behind Pete obviously,” said Corbin Trent, who co-founded Justice Democrats and Brand New Congress. 

On the other side of the country, California Gov. Gavin Newsom (D), 54, is getting noticed as an outspoken leader in the nation’s most liberal state, most recently by being critical of what he sees as Democrats’ soft stance against Republicans. 

People talk about “Mayor Pete being able to do some things, and I think Gavin Newsom’s got a better shot because he’s a blank slate nationally,” said Trent.  

While he has already gotten Democrats speculating about his 2024 aspirations, his most recent moves have angered some who wonder whether he’s helping or hurting their chances in 2022 first.  

Newsom has recently feuded with Texas and Florida Govs. Greg Abbott and Ron DeStantis, two potential GOP presidential candidates, creating a divide among Democrats. 

“I think Gavin Newsom is just like, this is going to make national news,” said Michael Ceraso, who worked on both Sanders’s and Buttigieg’s presidential campaigns, referencing Newsom’s highly critical comments of the party at a recent event in Austin, Texas. 

“It’s another version of elite moral grandstanding. No one is asking you to be the champion of this stuff,” he said.  

Another California progressive who is to the left of Newsom, Rep. Ro Khanna (D-Calif.), has taken steps to position himself as a potential presidential aspirant. Khanna has said he will support Biden if he runs again, but some Democrats still wonder if that will happen. A lot can change between now and when he would have to announce.

“Fresh ideas and voices are critical to a healthy democracy,” Khanna told The Hill on Friday. “Across the country, we are hearing from young people who are mobilizing for change and demanding new leaders to address issues like the climate crisis. To this new generation, I say: Be loud and keep pushing.” 

Like Buttigieg, he’s traveled to New Hampshire and has published a book. And at just 46, he’s considerably younger than most other hypothetical contenders. He’s also not white, a factor that distinguishes him from Sanders, Warren, Buttigieg and Newsom. 

One major Democratic donor said Khanna is “being whispered about as heir apparent to Bernie,” while quietly making the rounds. The Silicon Valley progressive formerly co-chaired Sanders’s 2020 campaign and has since focused on an economic populist pitch. 

“Mayor Pete came out of nowhere and fired people up. I still have some hope for Ro Khanna being able to do some things and shake some things up,” said Trent. “He’s got the desire for sure in spades. He’s also put in a lot of work in getting more TV ready and media ready. It’s something he’s focused on.” He’s “strategic and cunning in a very good way.” 

Khanna is well thought of among progressives in Washington, including within the Congressional Progressive Caucus, but he’s not a known entity. And unlike Newsom, he lacks broader national recognition — something he’d have to start working on early. 

“He’s worked a little in Iowa, he’s done some of the groundwork already,” Trent added. “I think you end up with a wide-open field and I think he becomes way more possible.” 

Another option is Democrats’ most recognizable young leader on the left — and arguably their most controversial. 

Rep. Alexandria Ocasio-Cortez (D-N.Y.) will be old enough to be president by inauguration day in January 2025. But the most visible member of the “squad” hasn’t made any obvious moves to get on many Democrats’ shortlists just yet. 

Republicans have a particular fixation on the congresswoman in her deep blue New York district, and some in the party say she’s too divisive to be considered for a national spot. Some close to her even doubt that she has the desire to do it. 

But the 32-year-old congresswoman has the name recognition and what others believe is enough star quality to bring the progressive movement into the future and widen it to include new electorates. 

What Sanders and Warren started, some argue, Ocasio-Cortez could help move the ball forward.  

“AOC represents a changing of the guard,” said a senior adviser to Florida Democratic gubernatorial nominee Charlie Crist, who has worked for other down-ballot candidates. “Representation that looks like and has the same shared experience that many of the voters we’re trying to recruit have had. That matters,” the adviser said.  

“She’s smart, authentic and principled. That’s a rare combination in Washington.” 

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Democrats’ dilemma: How to get Jan. 6 recommendations through Congress

House Democratic leaders will face heavy political pressure — and a tight time crunch — to vote this year on election reform recommendations soon to arrive from lawmakers investigating last year’s attack on the U.S. Capitol. 

The Jan. 6 select committee is charged with proposing improvements to the nation’s election system in an effort to reinforce the peaceful transfer of power, which came under threat by a pro-Trump mob after his 2020 defeat. The recommendations are expected to arrive after the Nov. 8 midterm elections, as part of the panel’s final report on its findings.

That will leave Democratic leaders with a short window to draft legislation, rally support and send the reforms to the Senate — all in a lame-duck session when they’ll also face a crucial deadline to extend federal funding and prevent a government shutdown. 

Complicating their task, the House is widely expected to change hands next year, shifting all the legislative decisions to Republican leaders who, in defense of former President Trump, have condemned the select committee from its inception and are certain to ignore any recommendations the panel proposes.

As Congress left Washington last week for the long election recess, the combination of factors was already stirring a sense of urgency from rank-and-file Democrats, who want their leaders to prioritize the panel’s recommendations at year’s end, before they’re buried by a potential GOP takeover.   

“I don’t know what their thought process is. But whatever it is, we actually need to get it done,” said Rep. Ruben Gallego (D-Ariz.). “Because if the House flips, which I don’t think it will, but if it does, Kevin McCarthy’s not going to do anything to protect this country.” 

The House is scheduled to be in session for 17 days during the lame-duck period, now scheduled to end on Dec. 15. The year-end calendar is notoriously fluid, as leaders are frequently forced to keep lawmakers in Washington to finalize must-pass legislation. This year, the must-pass bill is a nascent package to extend government funding, which would otherwise expire at the end of Dec. 16. 

Some Democrats said the lame-duck window allows plenty of time to consider the select committee election proposals — and even win the Senate support needed to enact them into law. 

“We have two months. What? Is there anything more important than making sure we defend our democracy?” said Rep. David Cicilline (D-Calif.). “We have no option, in my view, other than to act swiftly as soon as those recommendations are reported. We have to get this done before we adjourn.”

Others voiced heavy doubts that Senate Democrats could find enough Republican support to overcome a GOP filibuster. 

“I would think that [House] leadership would want to vote on them, since the committee’s done such great work,” said Rep. John Yarmuth (D-Ky.), chairman of the House Budget Committee. 

But Senate passage? “I can’t imagine,” he said.

Members of the Jan. 6 committee, meanwhile, said it remains unclear if their recommendations will be considered at all in November or December.  

“We don’t know,” said Rep. Pete Aguilar (D-Calif.). “Maybe some of them.”

A failure to send election reforms to President Biden’s desk would be a huge disappointment to Democrats, voting rights groups and other good-government activists, particularly with Trump eyeing another run at the White House in 2024. Still, passing the reforms through the House would also provide Democrats with ammunition to criticize Republicans for opposing efforts to bolster democratic institutions, even after the threat of Jan. 6, 2021. 

Congress is already moving on one piece of the reform effort, the Electoral Count Act, which increases the lawmaker threshold needed to challenge state election results and clarifies that the vice president’s role in formalizing those results is merely ceremonial. Different versions of the bill have already been passed by both the House and Senate, and the chambers are hoping to iron out the distinctions during the lame-duck session. 

Investigators have also hinted at proposals to stiffen the criminal code to punish presidents who pressure other factions of government, like state election offices and the Justice Department — two prongs of Trump’s effort to remain in power after his defeat. 

Outside of the committee, there’s been a push to adopt a resolution that leans on the 14th Amendment to disqualify presidents who actively seek to subvert elections. 

And Rep. Jamie Raskin (D-Md.) indicated last week that he wants to clarify elements of the 25th Amendment, which seeks to guarantee a continuity of governance in the event a president becomes incapacitated. 

In the days after the Jan. 6 attack, several members of Trump’s cabinet had weighed whether to invoke the 25th Amendment to remove Trump from office. Raskin, an expert in constitutional law, said that, as written, “It’s not even clear whether they could have or not.”

“There are a lot of provisions in the 25th Amendment that need to be clarified,” Raskin told reporters Friday outside the Capitol.   

The ultimate fate of the reform recommendations could hinge on the timing of the committee’s final report, which will contain them. Chairman Bennie Thompson (D-Miss.) has said there will be an interim report issued before November, with the final report to come afterwards. But when it will arrive remains unclear. 

Given the limited calendar of the lame-duck session, some lawmakers are hoping it arrives quickly after the House returns to Washington on Nov. 14. 

“I hope they give us time, and I hope we act on it,” said a Democrat who spoke anonymously to discuss a sensitive topic. 

Rep. Ro Khanna (D-Calif.) said the midterm results will be a key factor in installing some urgency to the process. 

“The lame duck is actually the last chance to enact these reforms,” he said, “because Republicans may not be as disposed to voting for them.”

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Five cases to watch as a conservative Supreme Court begins its new term

When the Supreme Court starts its new term Monday, the six Republican-appointed justices are expected to resume the project they began last term of remaking U.S. constitutional law in a conservative image.

With many Americans are still reckoning with a term that eliminated the federal abortion right in the Dobbs decision, expanded Second Amendment and religious rights and shrank the U.S. government’s power to curb climate change, the 6-3 conservative majority court has chosen a set of highly combustible cases that court watchers believe are likely to break along ideological lines.

“In most of the high-profile cases besides Dobbs, we saw 6-3 decisions, with Republican-appointed justices on one side and Democratic-appointed justices on the other,” Irv Gornstein, executive director of Georgetown Law’s Supreme Court Institute, said recently of the court’s prior term.

“There’s no reason to think this coming term, or any term in the foreseeable future, will be any different,” he said. “On things that matter most, get ready for a lot of 6-3s.”

When conservative dominance of the high court burst into full view last term — the culmination of a decades-long and deep-pocketed effort by the conservative legal movement — it left supporters ecstatic.

Opponents of the various decisions had a much different opinion, and the dissonance has left the Supreme Court notching historic lows in recent polling on public approval and confidence.

Debate over how the court’s rightward shift is affecting its institutional health and standing with Americans has even led to some justices trading barely veiled barbs in public commentary.

As the court embarks upon another contentious term, here are five cases to watch.

Environment

The Supreme Court’s first case of the new term involves a major environmental dispute over the federal government’s power to protect the nation’s waterways under the Clean Water Act.

The central question is whether the Environmental Protection Agency’s regulatory reach extends to wetlands that are not connected to federal waters above ground — but are capable of reaching these waters below the surface.

If the justices give a narrow reading to the government’s authority, it could pave the way for greater land development and loosen requirements on businesses that discharge pollutants. Conservation groups warn that such an outcome risks disrupting the environment and animal habitats.

Arguments in Sackett v. EPA will be heard Oct. 3.

Affirmative action

A pair of cases will challenge the use of race-conscious admissions in higher education. Lawsuits against Harvard and the University of North Carolina ask the justices to end affirmative action in college admissions decisions by overruling a longstanding precedent that permits schools to consider race as a factor when assembling a student body.

The challengers, a group of Asian American students, claim in the Harvard case that the school violated civil rights protections by engaging in racial balancing and by refusing to administer an available race-neutral approach to admissions.

The cases, Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina, will be argued before the justices Oct. 31.

Election law

The justices will hear an election law case that could hand state legislatures sweeping new powers over how voting maps are drawn and federal elections conducted.

GOP lawmakers in North Carolina are appealing a ruling by their state’s top court which found that a new Republican-drawn voting map amounted to an illegal partisan gerrymander. The Republican challengers have urged the justices to rule in their favor by finding that the Constitution’s Elections Clause hands state legislatures near total control over how federal elections are carried out in their state, a theory known as the “independent state legislature doctrine.”

If the Supreme Court sides with the Republican lawmakers, it could effectively shield legislatures from having their electoral maneuvering reviewed in state courts, removing a key judicial check on lawmakers’ power.

Arguments in Moore v. Harper have not been scheduled yet.

Voting rights

The justices will weigh a voting rights case that tests the legal limits on alleged racial gerrymandering, which involves the drawing of voting maps in a manner that dilutes the electoral power of racial minorities. 

The case arose after Alabama Republicans asked the justices to block a lower court ruling which found Alabama’s new voting districts likely run afoul of the Voting Rights Act.

The central question is whether the mismatch between Alabama’s Black population (27 percent) and its disproportionate representation in Congress (one of seven U.S House seats, or 14 percent) violates the law. Arguments in Merrill v. Milligan will be heard Oct. 4.

LGBTQ discrimination

The Supreme Court will hear a First Amendment dispute that deals with a Colorado website designer’s refusal to make her services available for same-sex weddings.

The case arose when web designer Lorie Smith’s plan to exclude gay weddings, due to her religious belief, ran headlong into a Colorado nondiscrimination law. That law makes it illegal for businesses that serve the public to turn away customers based on sexual orientation or other aspects of identity.

The case will test whether the Colorado law infringes on free-speech protections by compelling people like Smith to engage in speech they oppose.

Argument in the case, 303 Creative LLC v. Elenis, has not been scheduled yet.

Source: TEST FEED1