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What’s the point of punishing Trump?

Or Alex Jones? Or Deshaun Watson?

The Info-warrior. Friday, a Texas jury assessed $45.2 million in punitive damages against Alex Jones, on top of the $4.1 million it previously ordered him to pay in ordinary damages. The $49.3 million total would go to Neil Heslin and Scarlett Lewis, whose 6-year-old son Jesse Lewis was killed in the Sandy Hook massacre. On his widely viewed program Info Wars, Jones repeatedly claimed that the massacre was a hoax designed to give the government an excuse to confiscate guns, that Heslin and Lewis were “crisis actors”, and that their son never existed.

Because a large number of Jones’ fans actually believe the dark fantasies he spins, Heslin and Lewis have not only seen their grief exploited for someone else’s gain, but they’ve been harassed and even in physical danger for the last nine years.

As the linked article makes clear, the total amount Jones ends up paying could go either up or down. He might appeal to get this judgement reduced, but he also faces additional cases brought by other victims of his malicious lies. Or he might wriggle out of accountability by abusing the bankruptcy laws.

Like a lot of people, I take satisfaction from the prospect of Jones paying millions of dollars. I don’t throw the word evil around lightly, but Alex Jones qualifies. He has amassed a huge fortune by slandering people who have already suffered something worse than most of us can imagine. This is purely predatory behavior, and there is no excuse for it.

The quarterback. Last Monday, another punishment was announced (pending appeal): NFL quarterback Deshaun Watson will be suspended for six games. Watson was the target of lawsuits by 24 female massage therapists. Despite playing for a team (the Houston Texans) that had its own massage therapists, Watson arranged private appointments with more than sixty women, 24 of whom claim he tried to pressure them into sexual acts.

Watson sat out all last season (with pay) while the Texans watched the progress of the cases against him and tried to decide what to do with him. (He had demanded a trade before the scandals broke, but his value was hard to determine until the criminal probes concluded.) Ultimately, Watson was not indicted and he has settled all but one of the suits. The Texans then traded him to the Cleveland Browns, who signed him to a five-year $230 million contract. The contract was structured to have a large signing bonus, but a small first-year salary. As a result, he’ll lose only $345K if he misses the six games.

Like a lot of people, I had the exact opposite reaction to this announcement: Really? That’s all? I don’t know what I thought justice would be, but this isn’t it. If the decision stands, Watson will be back on the field for the Browns’ game against Baltimore on October 23. He should barely notice the lack of $345K, and it will be as if nothing ever happened. Come February, his accusers might be watching him in the Super Bowl. [1]

The former president. Meanwhile, the mills of justice grind very slowly in the case of Donald Trump. The House January 6 Committee has put together a compelling case that he did the single worst thing any American president has ever done to the country: He lost an election and tried to stay in power anyway. The January 6 attack on the Capitol was the culmination of a much larger anti-democracy plot, which he set in motion and tried to benefit from.

If he had succeeded, the republic set up by the Founders would effectively have fallen. After ignoring the Constitution and overruling the voters in 2020, why would he ever give up power? And if he should happen to die or retire, why should any future president give up power?

Whether Trump will face any consequences for these actions is still up in the air. Mitch McConnell and his fellow Republican senators refused to hold Trump accountable in his second impeachment trial. A Georgia prosecutor is investigating the former president’s attempts to reverse that state’s 2020 election, and the Department of Justice finally appears to be going up the chain from the January 6 rioters to the plotters whose will they were carrying out.

Will any of that lead to indictments? Convictions? Jail time? It’s still not clear.

The point of punishment. I’m discussing these three men together — Jones, Watson, Trump — because their cases raise a common theme: What is punishment for? How much is enough? Thinking about Jones and Watson, I believe, can give us insight into what we should want for Trump.

As I said above, it’s satisfying to see bad men punished. That’s a very human response. Particularly when evil-doers appear to prosper, it’s easy to convince yourself that anything bad that might happen to them is justified and even good. [2]

At the same time, I believe that the propensity to glory in revenge (whether personal, vicarious, or rooted in some abstract sense of justice) is not humanity’s best feature. At some point we need to let the Past pass, so that we can move ahead unencumbered.

But when is that? When can we say “OK, enough”? [3]

Nixon. Before we think about that, I want to consider one more example: Richard Nixon. President Ford pardoned Nixon about a month after he resigned, and as a result Nixon was never held fully accountable for his crimes. He never went to prison. He never even had to stand trial, so no once-and-for-all judgement about his actions was ever recorded.

At the time (I turned 18 shortly after the pardon, so I got to vote against Ford in 1976), I thought Nixon got off too easily. OK, he had to leave power, but most of us never have much power. If being returned to the ranks of ordinary citizens counts as “punishment”, then presidents really are above the rest of us in a way that I think the Founders never intended.

But as I look back now, I’m willing to cut Ford a little more slack. Even without a trial or prison, Nixon became a cautionary tale in American politics. For decades afterwards, a stain of illegitimacy hovered over everything he did. No American politician wanted to hear his or her actions compared to Nixon’s. His name went unmentioned at Republican conventions. Post-Nixon presidents couldn’t justify their actions by citing Nixon as a precedent.

In retrospect, I think that was a good outcome.

What I want for Trump, Jones, and Watson. What I want for each of them is not some specific punishment. What I want is an outcome that makes them cautionary tales for anyone in a position to offend in similar ways.

I want current and future sports stars to consider their possible actions and think “I don’t want to become another Deshaun Watson.” I want current and future conspiracy-theory entertainers to think, “That might gain me some viewers, but it’s a little too much like Alex Jones.”

And most of all, I want a stain of illegitimacy to fall across everything Donald Trump ever did. I want the adjective “Trumpian” to become a pejorative label that every major American politician tries to deflect, just as no one wanted to be “Nixonian” for the rest of the 20th century. I want the advisors and assistants in all future administrations to consider what happened to Trump’s people and think about what they might be risking.

What kind of punishments would do that?

It’s tempting to see the Nixon example as proof that punishment isn’t necessary at all. But Nixon was a very different case: By the time he left office, his party had already turned against him. He was never again a force in American politics.

By contrast, Trump is actively trying to return to power, and remains a cult figure whose members regard him as a hero.

He won’t go quietly into the Past, so he has to be brought down. I don’t see how that happens without mug shots, a trial, and an orange jumpsuit. The evidence against him needs to be presented in a court where he is not in control, with the result (I hope) that a jury unanimously convicts him of crimes. He needs to go to jail.

His trial and sentencing will be traumatic for the country, but his own actions and lack of remorse make it necessary. There needs to be an outcome whose reality he can’t deny. His followers may continue to claim, against all evidence, that he won the 2020 election. But if he’s in jail they can’t claim that a jury acquitted him.

How much jail time? Revenge says “He tried to overthrow my country’s Constitution and sent his mob to attack my Capitol.” The rest of his life would not be long enough to satisfy my desire for Revenge.

But that’s not an urge I want to indulge. So: how long? Long enough for the country to move on, and for the Republican Party to find new leaders. A four-year political cycle needs to come and go without any expectation that he might participate.

So that’s what I want: four years.

[1] For comparison, Tom Brady served a four-game suspension at the conclusion of the Deflategate saga. The Patriots managed a 3-1 record while he was gone. After he returned, the team continued on to the Super Bowl, where Brady led a historic comeback against the Atlanta Falcons and was named MVP. That game is considered one of the highlights of his career.

[2] I believe this is where the myth of Hell comes from. For many people, the vision of bliss in Heaven would be incomplete without the knowledge that the people who abused them in life are suffering endless torment. My own beliefs about God or the afterlife are uncertain, and waver sometimes from day to day. But one thing I’m certain I don’t believe is that a loving God condemns anyone to eternal suffering.

[3] My detailed analysis is in a sermon I gave in 1999, “Forgiveness“. I stand by it.

A Week When Congress Mattered

Three important bills and what happened to them.

Most of the time in America, it’s hard to believe that the Founders intended Congress to be the center of our government. Today, our political conversation spends weeks at a time focused on what the Supreme Court did or might do, what the President did or might do, or how one of them will respond to the other’s latest move.

But wait — isn’t there a third branch? What ever happened to it?

When we talk about Congress at all, it’s usually because they’re investigating some scandal or pseudo-scandal in the executive branch. Or because the Senate is confirming a new judge. Or Congress is the backdrop where the Fed chair makes headlines by commenting on the economy or interest rates.

Of course, members of Congress can become a topic of discussion if they tweet something outrageous or share a platform with Nazis or embarrass our country in some other way. When Republicans control one house or the other, Congress occasionally manufactures a news-making event out of nothing: a government shutdown or a debt-ceiling crisis. The world would be puttering along just fine if Congress weren’t standing on an important life-line and threatening to shoot itself in the foot.

Every now and then, congressional coverage is about legislation, but the bill in question is only symbolic: The House may be voting to codify Roe (i.e. respond to the Supreme Court) or ban assault weapons or protect voting rights (again, in response to the Supreme Court letting states violate rights previously established), but its members rest secure in the knowledge that a Senate filibuster will prevent any of that from becoming law. The point isn’t to accomplish something for the country, but to get one party or the other on the record, so that their votes can be issues in the next election.

In short, we’re used to viewing Congress through a veil of Shakespearean cynicism: Its doings may be full of sound and fury, but ultimately they signify nothing.

To the country’s great surprise, though, this week was different: Congress was in the headlines for three pieces of legislation, all of which matter to people in the non-political world and stand a real chance of becoming law: One bill passed and is on President Biden’s desk. One bill that looked like a slam-dunk failed. And one that seemed dead came back to life.

The bill that Congress passed is the CHIPS Act, which subsidizes American high-tech manufacturing in an attempt to bring the semiconductor industry back to the United States. (Currently, the US imports its most advanced computer chips from Taiwan, a supply chain that China might be able to interrupt.) Promoted as a move to stay competitive with China, the bill spends $52 billion directly, and also includes a tax credit for certain kinds of investments.

The bill is aimed at the future, and won’t do much to solve the immediate chip shortage, which is hampering a variety of American industries. Vox summarizes:

The bulk of the CHIPS Act is a $39 billion fund that will subsidize companies that expand or build new semiconductor manufacturing facilities in the US. The Commerce Department will determine which companies receive the funding, which will be disbursed over five years. More than $10 billion is allocated to semiconductor research, and there’s also some support for workforce development and collaboration with other countries. The bill also includes an extensive investment tax credit that could be worth an additional $24 billion.

The bill that unexpectedly failed was PACT. The point of this bill is to expand VA care to veterans whose illnesses may have been caused by exposure to toxic fumes from burn pits during foreign deployments. Wikipedia says:

Burn pits were used as a waste disposal method by the United States Armed Forces during the Gulf War, the Kosovo War, the War in Afghanistan, and the Iraq War, but have since been terminated due to the toxic fumes that posed health risks to nearby soldiers. Currently, the Department of Veterans Affairs (VA) requires veterans to prove that their illness is directly related to burn pits.

From 2007 to 2020, the VA denied 78 percent of disability claims by veterans that were alleged to have been caused by burn pits. The Honoring our PACT Act would remove the requirement that veterans prove that burn pits caused their illness and retroactively pay veterans who did not receive care for their illnesses after claiming disability caused by burn pits. The Congressional Budget Office estimated the cost of the Act would be $300 billion from 2022 to 2032.

This was supposed to be a done deal. The House passed the bill in March. With only minor changes, the Senate passed the bill 84-14 in June. It then went back to the House, where “technical problems were discovered in the language of the bill”. The House made the needed technical changes and passed the bill again. Because the bill wasn’t identical to the one the Senate passed, it went back to the Senate, where passage should have been a formality. But instead Republicans blocked it.

“Why?” you might ask. Well, for reasons that have nothing to do with the bill itself, but rather with the other two bills. Democrats intend to avoid the Senate filibuster by passing the third bill, the Inflation Reduction Act (see below), via reconciliation. They can do that without any Republican votes, if they get all 50 Democratic votes. (That’s why an individual Democrat like Joe Manchin or Kyrsten Sinema has so much power.)

Passing a bill without Republican votes is a horrible miscarriage of democracy — at least if you listen to Republicans. (Of course, they passed the Trump tax cuts via reconciliation, and tried to repeal ObamaCare via reconciliation, both without the votes of any Democratic senators. But that’s fine, because that was them. When Democrats do it, it’s unthinkably awful.)

As usual when Republicans aren’t getting their way, they took hostages. McConnell promised that there would be no bipartisan CHIPS Act if Democrats went ahead with a reconciliation bill. 17 Republican senators apparently believe that the CHIPS Act is good for America — that’s why they voted for it. But they were willing to torpedo something good for America if Democrats didn’t do what they wanted. (God forbid senators should just vote for what they think is good and against what they think is bad.)

But when Joe Manchin blew up what was left of the reconciliation bill two weeks ago, Republicans decided they didn’t need a hostage any more. So the CHIPS bill passed.

And then Manchin and Schumer announced they had come to an agreement. Someone had to be punished for tricking Mitch McConnell (who is always such a straight shooter himself, right?), and the only whipping boy at hand was PACT. So McConnell blocked it. (For technical reasons, PACT doesn’t qualify as a reconciliation bill, so 41 Republican votes was enough to stop it.)

Veterans were outraged, as they should be. Veterans’ healthcare shouldn’t be collateral damage in a dispute that has nothing to do with them. Nothing should, but especially not that. (Various Republicans have given a variety of bogus reasons for blocking the bill. But nothing that they’re talking about has changed since the same senators supported the bill in June.)

Fortunately, veterans have a celebrity speaking up for them: Jon Stewart, who has been championing these sorts of issues for a long time. (Before PACT, he nagged Congress until it fully funded the September 11 Victims Compensation Fund for first responders whose health problems traced back to working in the ruins of the Twin Towers.)

Partly due to Stewart’s ability to draw attention and channel outrage, the optics of this are terrible for Republicans, especially with the fall elections approaching. So I expect them to come back from the August recess looking to fix their blunder. I hope Chuck Schumer just takes the win and gets this done.

The bill that came back from the dead was the Inflation Reduction Act, a smaller and re-jiggered version of President Biden’s Build Back Better plan.

Build Back Better started out as a massive $3.5 trillion initiative that addressed a wide range of issues, from tax policy to healthcare to infrastructure to immigration to climate change. No Republican in Congress has ever supported it, so from the beginning, the only way to pass it was to get almost every Democrat in the House to support it, and then to squeeze it to fit the arcane rules of the reconciliation process in the Senate. If that happened, then Democrats could pass it if all 50 Democratic senators supported it and Vice President Harris broke the tie.

That need for unanimity gives every Democratic senator a veto. Most Democrats have seen the bill as a chance to prove to reluctant voters (especially young voters) that Democratic control of Congress actually matters, and that important things can get done if you vote. (Conversely, the best weapon Republicans have to suppress the youth vote in the midterm elections is “It doesn’t matter. Congress never accomplishes anything anyway.”) So they’ve been easy to convince. All along, though, Kyrsten Sinema of Arizona and Joe Manchin of West Virginia have been more difficult.

Most of the attention has gone to Manchin, who represents a state that Donald Trump carried more than 2-to-1 in 2020. So Manchin wins his elections almost entirely on his own, rather than because he represents the Democratic Party. When he runs again in 2024, “He saved Joe Biden’s agenda” is likely to appear in an attack ad against him, rather than an ad in his favor. So he has been understandably careful about what he agrees to.

(On the Left, I often see people attributing his position to corruption, to having coal industry donors, and to having coal interests himself. Similarly, the Senate’s inability to pass significant climate legislation gets attributed to “the Democrats” not really wanting to do so, because of donors and whatnot. I don’t see any reason to go there. Manchin represents a poor state with substantial fossil fuel resources. He needs to get votes from people who are skeptical about climate change, and are particularly skeptical that the Democratic Party wants to solve their problems. And “the Democrats” haven’t been able to pass a bill because they need 50 people to be unanimous, which is hard. Remember when the Republicans tried to repeal ObamaCare? They had 52 senators, but they couldn’t get 50 of them to agree on any particular proposal.)

For a year and a half, Manchin has been hard to please. The bill kept getting whittled down to fit what he claimed to want, but the goalposts would always move again before an agreement got made. (In his defense, the issue that he said he was worried about — inflation — kept turning out to be worse than previously anticipated.) Two weeks ago, it looked like he had ended any hope of getting a bill done in this session of Congress. And if Democrats lose either house of Congress in the fall, as seems likely (especially if they can’t generate more accomplishments to run on), it might be a long time before they’ll get another shot.

From the beginning, I’ve been debating whether Manchin was serious, or was just stringing President Biden along. (Moderate Republicans played a similar game with President Obama about ObamaCare. They kept hinting that their votes were available, but then never getting to Yes.) If he was serious, I figured, then eventually he would agree to something. Two weeks ago, I concluded that he was not serious and had never been serious.

But then Wednesday, Manchin and Majority Leader Chuck Schumer announced an agreement, which they dubbed the Inflation Control Act. Vox sums up what the bill includes:

  • $739 billion in revenue increases and $433 in new spending, leaving more than $300 billion for deficit reduction over ten years.
  • $370 billion of the spending addresses climate change. Most of the money goes for renewable energy and electric vehicles. The bill also includes a new penalty to discourage methane leaks.
  • The cap on the cost of ObamaCare insurance policies (adopted as part of Covid legislation in 2021) is extended for another three years.
  • Medicare is finally allowed to save money by negotiating the price of at least some drugs.
  • The IRS will get more money to help it catch rich people who cheat on their taxes.
  • Loopholes will close so that corporations pay at least a 15% tax rate.

The wild card in this is the other renegade Democrat, Kyrsten Sinema. She’s the last veto standing, and she might use that power to either get something that she wants or to scuttle the deal entirely. We should find out this week.

Trump doesn’t have a side of the 1-6 story

Before you complain about the 1-6 hearings being “one-sided”, you might want to ask Trump what his side of the story is.

As the January 6 Committee wraps up its public hearings until September, it’s time to assess what we’ve learned and where we are. Using primarily testimony from people inside Trump’s orbit (and occasionally inside his family), the Committee has put together a compelling narrative of how the January 6 riot happened. The key points are:

  • Trump lost the election.
  • His own experts, in his campaign as well as his appointees in the government, knew that his claims of widespread election fraud were false, and told him so on numerous occasions. This was not a matter of debate among administration officials. Every official in a position to investigate came to the same conclusion.
  • Trump tried everything he could think of to stay in power in spite of the voters. At every level, he tried to influence and intimidate Republican officials to change the results in his favor.
  • He pressured Justice Department leaders to lie about the conclusions of their investigations and back his false claims of election fraud.
  • He promoted a series of dubious legal theories, ranging from the unlikely to the absurd, that would give various intermediate entities (state legislatures, Congress, the Vice President) the authority to reverse the will of the voters and keep him in power. Again, the experts within his own administration unanimously told him that these theories had no merit.
  • He encouraged Republicans in seven states to assemble false slates of electors, and to submit fake electoral-vote totals to Congress. He then pressured Vice President Pence to count those phony votes, or to illegally refuse to count the votes of legitimate electors because their slate was “disputed”.
  • When it became clear that key departments within his administration — Justice, Homeland Security, Defense — would not abuse their powers to cooperate with his schemes, he called for a massive rally on January 6, promising it would be “wild”.
  • On January 6 itself, Trump knew that some members of his audience were armed when he told them to go to the Capitol.
  • Although a march to the Capitol was not announced in advance (even in drafts of Trump’s speech), right-wing militia groups like the Oath Keepers and Proud Boys knew it was coming. Before Trump started speaking, they were already preparing to breach the Capitol’s defenses and spearhead the mob Trump would send their way.
  • He intended to go to the Capitol himself, with his armed Secret Service detail, but the Secret Service refused to take him there. Instead, they returned him to the White House.
  • For three hours as the attack unfolded, he sat in the Oval Office dining room watching Fox News. The official White House records from that period are blank — no phone records, no photographs. During that time, virtually his entire staff pleaded for him to do something to stop the riot. But he made no effort to interfere with the attack, either by asking the mob to go home, or by mobilizing federal resources to aid the Capitol Police. Such orders, when they finally came, were given by Vice President Pence.
  • He knew that the mob was already angry with the vice president when he tweeted “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution”. He never called Pence to make sure he was safe. Meanwhile, members of Pence’s Secret Service detail were sending messages to their families in case they died.
  • Although the White House call record for those three hours is blank, President Trump was calling Republican congressmen, urging them to continue the work of the mob by delaying further the counting of electoral votes.
  • Only when the tide had already turned, and law enforcement was beginning to regain control of the situation, did Trump ask the rioters to go home. In that video message, he repeated the false stolen-election claims that had inflamed the mob, and told the rioters “We love you. You’re very special.”

If Trump supporters are forced to comment on this narrative, they nearly always say, “That’s just the Democrats’ version. The hearings don’t present Trump’s side of the story.”

I’ve heard various responses to this point, all of which are true as far as they go:

But there is a more fundamental answer that I seldom hear: Trump doesn’t have a side of the story to tell.

I know that sounds crazy: We’re often told that every story has at least two sides. But Trump has had every opportunity to tell his side of the story, and he has offered us nothing. If he wants to get his version out, he has immediate access to the vast resources of right-wing media, including Fox News, which I’m sure would love to be running shadow hearings orchestrated by his followers.

But in the last year and a half, Trump and his loyalists have made literally no positive contribution to the public record of the Capitol riot. From the beginning, Trump’s position has been consistent: No one should talk about January 6. No one should investigate it. No one should testify about it. (Josh Marshall comments on what Jim Jordan et al might have added to the hearings: “The point is to find out what happened … not to have a public presentation of findings along with another group making fart sounds and jeering and generally trying to throw the presentation or testimony off track.”)

Such comments on the hearings as Trump and his people have made are entirely negative: This event never happened, that witness shouldn’t be trusted, this testimony is hearsay, and so on.

But what did happen, Mr. Trump?


Well, that’s not entirely true: TrumpWorld does occasionally offer some transparent gaslighting about January 6, like when Trump described the mob that injured 150 police officers as “loving“, or Republican Congressman Andrew Clyde compared the Capitol invasion to “a normal tourist visit“, or the Republican National Committee characterized mob violence as “legitimate political discourse“.

But if any of the points in the Committee’s narrative are false, it shouldn’t be hard to assemble an alternative narrative and flesh it out with evidence. Did some investigator inside Trump’s Departments of Justice or Homeland Security (and not just amateur yahoos like Sidney Powell and the My Pillow guy) find evidence of the kind of widespread fraud that could have turned the election? (And not just a handful of people submitting false ballots, many of them for Trump?) Was there a faction — or even one person — inside DoJ’s Office of Legal Counsel or the White House Counsel’s office who supported Trump’s Pence-can-decide-what-votes-to-count theory? Can Trump tell us about any call he made to send help to the Capitol Police, and get the person he called to back him up? What’s the innocent explanation of how the Oath Keepers and Proud Boys knew ahead of time that a mob was coming to storm the Capitol?

Tell us about it. That would constitute another side of the story.

Or Trump could discuss his intentions. When he told the mob that he would go with them to the Capitol, did he mean it? Where exactly was he planning to go? What was he planning to do when he got there? Why didn’t he tell his supporters to go home sooner?

Other Trumpists could also tell us interesting facts, if they were so inclined. We know Roger Stone spent a lot of time with right-wing militia leaders prior to January 6. Maybe he could tell his side of that story (rather than pleading the Fifth in response to every question). Steve Bannon seems to have been tipped off about the riot. (“All hell is going to break loose tomorrow,” he said on his January 5 podcast. “It’s not going to happen like you think it’s going to happen.”) I’d love to discover how he knew, but he’d rather go to jail than talk about 1-6 under oath.

Mike Flynn retweeted a call for then-president Trump to declare martial law and hold a new election, and called for similar actions himself in public speeches. Other Trump officials have testified that Flynn wanted Trump to order the military to seize voting machines. Maybe he could tell us what he had in mind, rather than pleading the Fifth to a basic civics question like “Do you believe in the peaceful transition of power in the United States of America?”

Those accounts could turn into another side of the story. But it’s not the 1-6 Committee that’s preventing you from hearing such a narrative. It’s Trump.

So if you’re still a Trump supporter in spite of the evidence accumulated and presented by the Committee so far, your problem isn’t that Bennie Thompson and Liz Cheney are suppressing Trump’s side of the story.

Your problem is that Trump doesn’t have a side.

To Bind or Protect?

Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect. There is nothing more or else to it, and there never has been, in any place or time.

Frank Wilhoit

This week’s featured post is “No Victims Allowed“.

This week everybody was talking about January 6

The public hearings will return to prime time on Thursday, with a “minute by minute” recreation of what Trump was doing (and not doing) while the Capitol was under attack.

Last Tuesday’s hearing [video transcript] centered on the decision to call a mob to Washington, and who some of the key organizers were. Vox lists the key takeaways from the hearing.

I had not previously made the connection between the “unhinged” White House meeting of December 18 — when Rudy, Sid Powell, Flynn and “the Overstock guy” urged Trump to have the military seize voting machines — and Trump’s “will be wild” announcement of the January 6 demonstration that he tweeted only hours later. In context, it looks like Cipollone et al convinced him that martial-law tactics wouldn’t work, so he moved on to the riot plan.

The other detail that struck me: Even though the call to march to the Capitol was only added to Trump’s speech at the last minute, lots of people seemed to know it would be there.

As one organizer texted a conservative journalist on January 5, “Trump is supposed to order us to capitol at the end of his speech, but we will see.” Another organizer texted that the plans had been kept under wraps to keep it a surprise: “It can also not get out about the march because I will be in trouble with the national park service and all the agencies but POTUS is going to just call for it ‘unexpectedly.’”

That starts to sound like conspiracy.

Cassidy Hutchinson’s testimony continues to pick up corroboration. None of the TrumpWorld sources who supposedly were going to dispute her account have gone on the record. Meanwhile,

a Metropolitan Police Department officer corroborated details of Hutchinson’s account and recounted what was seen to committee investigators.

Rep. Raskin:

[Pat] Cipollone has corroborated almost everything that we’ve learned from the prior hearings. I certainly did not hear him contradict Cassidy Hutchinson. … He had the opportunity to say whatever he wanted to say, so I didn’t see any contradiction there.

The Committee continues to warn Trump about witness tampering. It’s a simple crime that is not that hard to prove — kind of like Al Capone’s tax evasion.

Part of putting together an account of Trump’s behavior during the 1-6 riot involves looking at Secret Service text messages. But it turns out that some texts were deleted as part of a “device-replacement program”. We’ll see if that’s really as suspicious as it sounds. The committee says it will try to “reconstruct” the deleted messages.

The most amusing take on the Secret-Service-text-deletion story is that it vindicates Major Biden, who had to leave the White House because he kept biting agents. Maybe he had sniffed out that some of them weren’t good boys.

Steve Bannon’s trial starts today. He tried to delay or derail it every possible way, but it’s happening. Also, the Trump-appointed judge is not allowing the spurious defenses that Bannon pledged would turn the trial into a “misdemeanor from Hell”. “What’s the point in going to trial here if there are no defenses?” his lawyer asked.

Other investigations also seem to be picking up steam. Fulton County District Attorney Fani Willis has sent “target letters” to a number of Georgia Republians

informing them they could be indicted for their role in a scheme to appoint alternate electors pledged to the former president despite Joe Biden’s victory in the state

Target letters are typically used to invite lower-level members of a conspiracy to come in and make a deal to testify against higher-level conspirators.

Willis has already subpoenaed Senator Lindsey Graham and Rudy Giuliani.

DoJ reportedly is also looking at the fake electors, possibly because it would be easy to make a case: People signed their names to false documents and sent them to the National Archives.

and more Manchin sabotage

Early on, I was inclined to give Joe Manchin the benefit of the doubt: He represents a conservative state, and is entitled to vote his worldview just like any other senator. If Biden’s Build Back Better plan doesn’t make sense to him, he shouldn’t vote for it.

And in a 50-50 Senate, each Democrat is in a position to hold out for whatever deal they want. That’s how politics is, and if people don’t like it they should elect a few more liberal Democratic senators to take Manchin’s veto away.

What’s been driving me nuts, though, is that Manchin doesn’t seem to be negotiating in good faith. Negotiations that have no reason to take more than a few weeks instead stretch into many months, and then at the end there’s no deal. If there was nothing he could agree to, why didn’t he just say so early on?

This week the climate portion of Build Back Better fell apart.

Sen. Joe Manchin appears to have torpedoed a cornerstone of President Joe Biden’s economic agenda, telling Senate Democratic Leader Chuck Schumer Thursday evening that he won’t support moving forward on proposed tax hikes on wealthy Americans and corporations that would pay for a package of climate change and energy policies, at least not right away, this according to two aides familiar with the matter.

Manchin cites fears about inflation, but since the spending is balanced against taxes, and won’t drive up the deficit, it’s not clear why the bill should be inflationary.

Meanwhile, new climate anomalies keep popping up. Europe is seeing wildfires in France and Spain, and England is set to break 40 degrees Centigrade (104 Fahrenheit) for the first time ever.

and abortion

The featured post discusses the pregnant Ohio 10-year-old who had to leave the state for an abortion.

I don’t think this story is a one-timer. Abortion is fundamentally a more complicated decision than conservatives picture, and their simplistic bans are going to lead to a long series of I-didn’t-mean-that cases.

The Biden administration is insisting that hospitals have to provide abortions in emergency situations, even if state law bans them.

[HHS Secretary Xavier] Becerra said the Emergency Medical Treatment and Active Labor Act pre-empts state laws that restrict abortion access in emergency situations. … Although most of the state abortion bans make exceptions for when the woman’s life is in danger, U.S. health officials worry that wary doctors could wait too long to treat ectopic pregnancies and complications from miscarriages while awaiting legal guidance.

Texas, meanwhile, appears to be holding out for a hospital’s right to let a woman die.

Texas on Thursday asked a federal court to block the Biden administration’s requirement that physicians and hospitals provide abortions in medical emergencies.

Texas Attorney General Ken Paxton, in a lawsuit filed in the U.S. District Court for the Northern District of Texas, argued that federal law does not confer a right to an abortion.

Dov Fox is a law professor and the director of University of San Diego’s Center for Health Law Policy and Bioethics. In a NYT column, he raises the issue of doctors who perform illegal abortions for reasons of conscience.

The American legal regime that governs medical conscience is broken. While conscientious providers find virtually no refuge in the conscience clauses that are codified in almost every state, refusers are protected almost categorically. And just about all of these conscience laws are reserved for denials of care.

It’s not hard to imagine what a conscience-based abortion would look like: Even if the state has a life-of-the-mother exception in its abortion ban, the doctor may draw that line in a different place than the legislature does. A doctor said this to ABC News:

When I see patients, for instance, who have a major cardiac problem, a lot of the time they have a risk of a major cardiac event of up to 15% to 25%, even up to 50%. At the moment they’re fine. But as they get further into pregnancy, that’s going to put their life more and more at risk.

So do I have to wait until they’re on death’s doorstep, or can I intervene at that point to prevent more harm and more damage to them?

The NYT is covering the Kansas referendum on abortion. A Yes vote amends the state constitution to allow the legislature to restrict or ban abortion. The Republican legislature has scheduled the vote to coincide with the August 2 primary election, which has a lower turnout than a November election. The amendment is also confusingly worded. It doesn’t sound like what they’d do if they thought the electorate was solidly behind them.

The whole process smacks not so much of returning power to the people as of showing contempt for them and for the democratic process, a trend that is becoming standard operating procedure throughout much of the G.O.P.

and you also might be interested in …

Remember what a to-do it was last week, when protesters came to a restaurant Justice Kavanaugh was eating at, but there was no interaction, no one was harmed, and nothing was damaged?

A source told Politico that Kavanaugh did not actually see or hear the protestors in question during his dinner at Morton’s, though he did reportedly leave the restaurant before dessert.

What? No dessert? Is this Nazi Germany or something?

My comment was:

Any time liberal protesters inconvenience a conservative official, it’s going to get national attention. (Generally, conservative protesters have to shoot somebody to get similar coverage.)

Well, Saturday an armed man was arrested outside Rep. Pramila Jayapal’s home in Seattle. He was armed, and was yelling that she should “go back to India” because he was going to kill her. The story just didn’t seem to take off like the Kavanaugh story did, even though the threat seems far more serious.

Maybe if he’d actually shot her, that would get Kavanaugh-level attention.

The New Yorker has an enlightening article about LGBT children’s books. Often the issues that children bring up in a book discussion are not the ones that adults anticipate. The article also makes a distinction between “didactic” queer stories (which are suppose to teach children that difference is OK) and “just-are” queer stories (in which gay or trans people are just characters in a story about something else).

Ron DeSantis types assume that the presence of LGBTQ characters makes a story “sexual”, when kids don’t read that into the text at all.

Several prominent Republicans — former senators, former judges, etc. — have put out a report debunking the various stolen-election theories Trump supporters have put forward. It’s called Lost, Not Stolen, and it goes through the claims state by state.

If you’ve been following this stuff closely, you won’t find anything new. I already knew, for example, that when the Cyber Ninjas were hired by Arizona’s Republican legislature to “audit” the state’s 2020 election results, Biden’s lead actually grew in their recount. And that when a committee in Michigan’s Republican state senate investigated their state’s election, they found “no evidence presented at this time to prove either significant acts of fraud or that an organized, wide-scale effort to commit fraudulent activity was perpetrated in order to subvert the will of Michigan voters”.

But the report is significant for two reasons

  • This isn’t Democrats saying Biden won and Trump lost, it’s Republicans.
  • The report is encyclopedic, so it addresses the whattabout-this/whattabout-that tactic of Trumpists, where refuting one conspiracy theory just causes them to raise another.

A committee of the Texas House has put out its report on the Uvalde school shooting. The Texas Tribune summarizes:

No one was able to stop the gunman from carrying out the deadliest school shooting in Texas history, in part because of “systemic failures and egregious poor decision making” by nearly everyone involved who was in a position of power

Police from various jurisdictions, from the school district to the state to the Border Patrol, descended on Uvalde, but nobody took charge of the 376 officers.

The report speculates that the shooter had never fired a gun until the day of the massacre.

and let’s close with something cosmic

I like to close with something you haven’t seen before, and often the closing is some set of spectacular photos. This week, though, the most spectacular photos (maybe ever) were headline news: The first returns from the James Webb Space Telescope.

No Victims Allowed

Right-wing policies have obvious victims, but right-wing voters can’t be allowed to notice them. This week, reports of a pregnant 10-year-old brought out the full arsenal of denial.

In the TV version of Westworld, the robots — or “hosts” in the corporate vernacular of the eponymous wild-west theme park — aren’t supposed to realize that they are manufactured pieces of an inauthentic environment. During each post-repair reactivation cycle, they are asked: “Have you ever questioned the nature of your reality?” If the answer seems to be drifting towards “yes”, more tinkering is needed.

Have you ever questioned the nature of your reality?

Fail-safes are built into their programming. Evidence of the world beyond the park, or of their own artificiality, isn’t supposed to register. “That doesn’t look like anything to me,” says one host as she examines a color photograph anachronistically dropped by a “guest”. Much later, another host says the same line while holding his own blueprints [spoiler].

No victims. The political fantasy world of American conservatives has similar safeguards. Conservative policies have certain obvious victims, people whose undeserved hell stems directly from those policies. But the voters who support those policies are not supposed to notice.

Kids who go hungry or become homeless when social programs are cut? Neighbors of poorly regulated industrial sites who develop bizarre cancers? Communities destroyed by climate-change-induced wildfires? They don’t look like anything, do they? Conservative policies work out best for everybody, other than a few corrupt and power-hungry Democratic politicians, or lazy people of color who want to sponge off the hard work of real Americans (or, conversely, to steal their crappiest jobs). Why would you ever question the nature of that reality?

Usually, right-wing media filters narrative-busting facts out of the news stream before they can disturb right-wing voters’ peace of mind. Has the January 6 Committee proved beyond the shadow of doubt that Trump knew his “stolen election” claims were lies? Fox News will protect its viewers from seeing that evidence. Does the Biden administration have the best job-creation record in the history of the modern presidency? Are vaccinated-and-boosted Americans 17 times less likely to die of Covid than unvaccinated Americans? Does right-wing political violence kill many, many more people than left-wing political violence? Do countries with national health care have lower expenses and higher life expectancies than the US? Nobody wants to hear that stuff; just leave it out.

School shootings. Every few weeks, though, something happens that is too big for the filter to handle, like a school shooting. The connection to policy couldn’t be clearer: Children are dead because the shooter had easy access to weapons that should only exist on a battlefield. Democrats would like to ban or restrict or control such weapons, but conservatives have blocked restrictions, and have even pushed to make such weapons more ubiquitous.

Republican lawmakers and judges have innocent blood on their hands.

That’s when you can see the conservative bubble’s immune system in its purest form. Some parts of it will tell you the apparent victims aren’t real. Those well-spoken kids from Parkland, the ones who survived their harrowing experience and became anti-gun activists? The reason they’re so articulate isn’t that Marjory Stoneman Douglas High did a good job educating them, it’s that they are “crisis actors” who weren’t present for the shooting at all. Similarly, the Sandy Hook parents didn’t really lose any children, they just participated in a “FEMA drill to promote gun control” [scroll down three pages to see text].

Nothing to concern yourself about. If those victims evoked a feeling of empathy, you can turn it off, because (like the hosts at Westworld) they’re just characters in a story, and not people at all.

Or maybe the events that disturb you are “false flag operations“. Remember the Las Vegas shooting, where one guy killed 60 concert-goers and wounded hundreds of others with multiple bump-stock-enhanced AR-15s? It wasn’t the kind of thing that’s bound to happen occasionally in a country with more guns than people. No, it was “the Islamic State and Antifa” carrying out a false-flag conspiracy “scripted by deep-state Democrats and their Islamic allies”. And the guy who responded to Trump’s “invasion” rhetoric by killing as many Hispanics as possible at a WalMart in El Paso? Antifa. Gotta be antifa.

The very act of connecting horrible events to conservative policies is itself illegitimate. Noting the clear cause-and-effect is “politicizing tragedy“. (Framing mass shootings as “tragedies” is an additional sleight-of-hand: Tragedies arise from inexorable Fate rather than human choices.) Learning from the Uvalde shooting that 18-year-olds should not be able to buy assault weapons is “politicizing” the deaths of children. Discussing gun policy “too soon” after a shooting disrespects the dead. (Oddly, though, it was never too soon to blame President Biden’s Afghanistan withdrawal for the deaths of 13 Marines. That could start immediately.)

Discussing other kinds of policy issues after a shooting is fine: mental health, video games, broken families, reinstating school prayer. The NRA’s politicians toss those topics into the post-shooting conversation the way radar-evading aircraft scatter reflective chaff. It’s never “too soon” to raise one of these issues, because (unlike guns) they’re not “political”. You can also propose “solutions” like armed teachers and schools with prison-like security, but not gun control.

The pregnant 10-year-old and Ohio’s laws. This week, though, we saw the clearest right-wing denial operation yet: the pregnant Ohio 10-year-old who had to leave the state to get an abortion.

Inside the conservative information bubble, the abortion issue is about healthy women with healthy fetuses who conceived their babies in wantonness and are killing them out of selfishness. If they didn’t want to raise a child, they shouldn’t have been so promiscuous. As right-wing mega-donor Foster Friess put it in 2012: “Back in my days, they used Bayer aspirin for contraceptives. The gals put it between their knees, and it wasn’t that costly.” More recently, Republican Congressman Greg Murphy of North Carolina defended the Supreme Court’s reversal of Roe with this gaslighting tweet: “No one forces anyone to have sex.

So how did a 10-year-old get pregnant? Did she consent? Does that question even make sense? I mean, reasonable people can argue about exactly where to draw the age-of-consent line, and some teen-age girls are closer to adulthood than others born on the same day. But ten?

So it’s rape. I don’t need to know the details.

Somehow, her body managed to ovulate. But was it capable of carrying a fetus to term and giving birth without suffering long-term damage? What about psychological trauma? And after birth, what then? Would she be old enough to decide whether to keep the child, or would that choice be taken away from her too?

Then we come to Ohio’s “heartbeat law“, which was passed by the legislature and signed by Governor Mike DeWine in 2019. It blocks abortions after “cardiac activity” can be detected, which is said to happen at about six weeks. (“Cardiac activity” is a deceptive term, and intentionally so. No six-week fetus has a beating heart. To be blunt, the anti-abortion movement is full of liars. You shouldn’t believe what they say about heartbeats, fetal pain, risks related to abortion, post-abortion regret, or pretty much anything.)

At first courts blocked the law, because it blatantly contradicted the Roe/Casey interpretation of the constitutional right to privacy. But then the Dobbs decision reversed Roe, and that same evening Ohio Attorney General Dave Yost announced that the heartbeat bill was once again in force.

When the girl, whose name thankfully has not been released (we’ll see how long that lasts), showed up in the office of a child-abuse doctor, she was six weeks and three days pregnant. (I’m amazed she responded that quickly. A pregnancy that early is sometimes hard for an adult woman to spot, much less a girl with a strong temptation to think “This can’t be happening.”)

That doctor called a colleague in Indiana (which probably won’t get around to banning abortion until a special session of the legislature starts next Monday), and a non-surgical abortion was performed in Indianapolis.

Media firestorm. The Ohio girl quickly became a symbol of the heartlessness of abortion bans. Abortion bans aren’t just about “saving babies”, who would all live to be cute and fat and happy if only their mothers weren’t so self-centered. The bans also have victims.

Sometimes abortion bans inflict hellish experiences on women and girls who have no good options. Sometimes the baby survives only to live in terrible pain for a few months before dying anyway. Some women are not going to get the best treatment for their miscarriages, because that treatment can look like an abortion.

And the Ohio girl is not unique; such cases will come up again. Similar but less extreme cases come up every day.

In Ohio alone, 52 girls under 15 received an abortion in 2020 — an average of one every week, according to the state Department of Health.

Abortion decisions are complicated, and each pregnant woman or girl who doesn’t want to become a mother has a unique story. That’s why I believe the decision should be left to the people involved rather than mandated by law.

In this particular case, the girl got an abortion before a long list of worse things could happen. But to a certain extent, that’s just the luck of timing. Indiana hasn’t gotten around to passing a heartbeat bill (or some even stricter ban) yet. Republicans haven’t managed to ban abortion nationwide — but they’d like to.

So it’s perfectly fair to ask anti-abortion zealots, like Governor Kristi Noem of South Dakota, how she would like such cases handled. The question is not some kind of trap. And there are reasonable ways, short of supporting reproductive rights, to respond to the pregnant-10-year-old story. I can think of two off the top of my head.

  • Anti-abortion politicians could make a more-good-than-harm argument. Sure, if we ban abortion, some 10-year-olds are just going to have to try to carry their rapists’ babies to term. Some women with difficult pregnancies will probably die because the law will keep doctors from intervening until it’s too late. Some women will die from unsafe illegal abortions. But think of all the babies we’re saving!
  • They could admit that abortion is a complicated issue, and start crafting a longer list of exceptions to the bans, acknowledging that the life of the fetus is not the only consideration.

Either option, though, would involve admitting that abortion bans have victims. And Republicans can’t do that.

The counterattack. Instead, they unleashed the full arsenal of denial. The story first appeared on July 1, and for a while the filter held: Just don’t mention the story and it will eventually pass. But then President Biden referenced it on July 8, so something more was called for. That same day, PJ Media began casting doubt.

There are major problems and inconsistencies with this story that no one in Big Media noticed or cared about. First, where is the police report or the social services investigation into the rape of the child? Who will be held accountable for child rape and why isn’t that an issue in any of the reporting? I was unable to find any verified police investigation connected to this story. Another troubling fact is the source of this claim is one person: Dr. Caitlin Bernard, an abortionist and activist who is all over the media advocating for more abortions and unrestricted abortions.

Last Monday, the 11th, AG Yost went on Jesse Watters’ Fox News show to imply that the story couldn’t be true because his office hadn’t heard about it. “We don’t know who the originating doctor in Ohio was — if they even exist.” If any local police were investigating such a case, he claimed, he’d know about it, because that’s how well plugged-in he is.

The next day he went further.

Yost doubled down on that in an interview with the USA TODAY Network Ohio bureau on Tuesday, saying that the more time passed before confirmation made it “more likely that this is a fabrication.”

That opened the floodgates. With no new evidence beyond Yost’s statements, Tucker Carlson said definitively that the story was false.

Why did the Biden administration – speaking of lying – repeat a story about a 10-year-old child who got pregnant and then got an abortion or was not allowed to get an abortion when it turns out the story was not true.

The Wall Street Journal described the story as “fanciful” and “unlikely”, apparently because it concerned a victim “no one can identify” (as if the 10-year-old’s identity should be out there). It didn’t say the word “lie”, but attacked Biden for repeating an unverified story.

All kinds of fanciful tales travel far on social media these days, but you don’t expect them to get a hearing at the White House.

(I have a hard time not laughing out loud at that statement. Before January 20, 2021, just about every presidential speech contained “fanciful tales” about Covid miracle cures or immigrant crime or election fraud. But now that a Democrat is in the White House again, the WSJ has rediscovered its high standards for presidential truthfulness.)

Jonathan Turley wrote an article for the NY Post that was originally headlined (and promoted on Twitter as) “Activist Tale of a 10-year-old Rape Victim’s Abortion Looks Like a Lie” before somebody toned it down for the print edition.

Newsmax host Chris Salcedo labeled Dr. Bernard “a pro-abortion sicko” and called for her license to be suspended, while Ohio congressman Jim Jordan agreed that the story “looks like it may just be completely made up”. (Appearing on Fox Wednesday, Indiana’s attorney general announced an investigation into Dr. Bernard, who appears to have done nothing wrong. Her picture has been displayed on television, and according to a colleague, “The local police have been alerted to concerns for her physical safety.”)

At this point, everybody in the world is at fault except the people who passed Ohio’s monstrous abortion law and the Supreme Court that turned their monster loose on the world. Joe Biden, the “left-wing media”, Dr. Bernard — they’re the villains of the story. But think about it: Independent of whether this particular incident could be verified or not, these basic facts are undeniable:

  • Girls as young as 10 sometimes do get pregnant.
  • Many red-state abortion bans that are either already in place or pending in the legislature would force those children to carry their fetuses to term, unless and until that effort was about to kill them.

Those two facts by themselves should have lent credibility to the Ohio story: There was no need to make up such a tale, because it was bound to happen eventually; all you had to do is wait.

Truth can’t break through. Wednesday, the story turned out to be true. A 27-year-old man confessed to the rape, which had been reported to local police on June 22. DNA tests were underway. (I guess AG Yost isn’t as well plugged in to local law enforcement as he thinks.) Dr. Bernard filled out the appropriate paperwork. None of the things conservatives had been going on and on about had any basis in fact.

But none of them have apologized for their mistakes. Attorney General Yost’s response to the arrest did not even acknowledge the total irresponsibility of his previous statements:

We rejoice anytime a child rapist is taken off the streets.

But anyway, now that we know the story is true, can we finally talk about forcing 10-year-olds to have their rapists’ babies? No, no, of course not.

You see, the confessed rapist is Hispanic, so now this is the story:

Columbus police detective Jeffrey Huhn testified during Wednesday’s hearing that law enforcement does not believe that Fuentes is in the country legally.

Instantly, right-wing media has gone from outrage at the Left inventing the rape story to outrage at the illegal immigrants who are raping our children.

Why would Ohio try to force a 10-year-old to have her rapist’s baby? Conservatives will never, ever discuss that question, because even entering such a conversation might cause them to question the nature of their reality.

The Right has an immature notion of Freedom

Highland Park is one more example of a simple truth:
Our inability to enforce sensible rules is destroying our liberty.

Many years ago, when my young body still tolerated harsh environments, I used to go to Burning Man. I happened to be there the first year (don’t ask me when it was) that the organizers laid out streets.

The difference it made was amazing: The year before, you’d leave your tent in daylight, go have a bunch of adventures, and then return in the dark. In the meantime, more tents had been pitched, some of the objects you had taken for landmarks had moved, and finding your way home had turned into an adventure of its own. Every night, the camp was full of lost people tripping over each other’s tent stakes.

But then: streets. Now you had a clear path home, and even an address of sorts. Staying out late and coming back exhausted (or impaired) was a workable plan. You didn’t have to allocate a big chunk of time for stumbling around in the dark.

Experiencing those first streets of Black Rock City taught me an important lesson: Accepting a simple rule — don’t camp in the streets — made us all more free to do the things we actually wanted to do.

Once you understand that idea, you can see it everywhere: Traffic rules, for example, are what makes the road system usable. Even if all the same slabs of concrete stayed in place, it would take forever to drive from New England to Florida, as I do every December, if there were no traffic rules. In theory, getting rid of the rules means I could drive 100 mph and get there much faster. But there’s no way I would do that in reality, for fear that some other guy was using my lane to go 100 mph in the opposite direction.

Without the rules, the whole plan of driving to Florida would be unworkable. I would lose that option, and hence be less free. Because freedom isn’t maximized by having no rules; it’s maximized by having the right rules.

The economist John Kenneth Galbraith put it this way in 1969 when he wrote the introduction to the second edition of his 1958 book The Affluent Society:

Even the most stalwart conservative who dares not venture out in the street at night and hesitates on occasion to drink the water or breathe the air must now wonder if keeping public services at a minimum is really a practical formula for expanding his personal liberty.

It turns out that having really low taxes, and being free to burn or toss into the river whatever we want to get rid of, diminishes our freedom to do more important things, like drink and breathe.

The last few years, our political discourse has been dominated by the loud voices of people too immature to understand this simple notion. (Five of them have even made it onto the Supreme Court.) Throughout the pandemic, for example, sensible folks have been searching for public-health rules that would allow us all to do more things safely. Maybe, for example, it could be safe to eat in a restaurant if we knew everybody would be vaccinated, or go to a movie if everybody would be vaccinated and masked.

But no, we couldn’t do that, because those would be RULES, and rules restrict our FREEDOM.

In my case, being in my sixties and married to someone with a few additional risk factors, I had so much FREEDOM I could barely leave the apartment.

This week we got an even clearer example of how the no-rules notion of freedom in fact makes us less free: the Highland Park shooting. A rooftop gunman killed seven during a Fourth of July parade in an upscale suburb along Lake Michigan. Forty-six others were either wounded by gunfire or injured in the ensuing panic.

Different shootings affect people differently, independent of the number killed or injured. This one, I think, is going to stick with me. I suspect it’s going to stick with a lot of people.

I don’t think I’ve ever been to Highland Park, and you probably haven’t either. But you’ve seen it. The movies use Chicago’s North Shore suburbs to symbolize affluent communities so sheltered from the scary aspects of modern life that teens have to seek out adventure for themselves. Ferris Bueller lived in Highland Park; so did Joel Goodsen from Risky Business. That idyllic family life The Good Wife had before her crooked-politician husband went to jail and everything fell apart? It was in Highland Park. The town sits between Lake Forest, where 1980 Best Picture Ordinary People was set, and Winnetka, site of the Home Alone house. (But parts of that movie were shot in Highland Park too.)

During their glory days with the Bulls, basketball legends Michael Jordan and Scotty Pippen had Highland Park mansions. Jefferson Airplane’s Grace Slick was born there. About 30K people live there now, and the 2010 census says the median household income is over $100K.

Here’s what I’m trying to get across: If a mass shooting can happen in Highland Park, it can happen anywhere. It can happen in your town too.

And who hasn’t been to a Fourth of July parade? Or sat in a crowded park waiting for the fireworks to start? The last time you did that, did you think you were taking a chance? Putting your family at risk? Did you plan which way you’d all run if gunfire broke out?

Now you will. We all will. Or maybe we’ll just stop having Fourth of July parades at all. After all, our inability to make sensible rules about guns is leaving us with damn little real freedom to celebrate.

Inside the White House on 1-6

Cassidy Hutchinson’s testimony Tuesday damaged both Trump’s image and his legal position.

The top assistant to Trump Chief of Staff Mark Meadows, whose desk was just steps away from the Oval Office, testified to the 1-6 Committee Tuesday [video transcript]. She made an impressive witness and told a compelling story.

In my mind (and I suspect in Liz Cheney’s as well), these hearings serve two parallel purposes:

  1. assembling evidence that will force the Justice Department’s hand and get Trump indicted,
  2. breaking his hold on the Republican Party so that he will never return to power.

Cassidy Hutchinson’s testimony served both. Which purpose you find most important determined which part of her testimony you focused on.

Personally, I want to see Trump in jail, because I think that’s necessary to deter future fascist presidents from arranging their promotion to Führer. So I focused on the legally significant claims:

  • Trump had been warned before January 6 about the potential for violence.
  • When he told his rally crowd to march on the Capitol, he knew they had weapons.
  • He tried to stop the Secret Service from taking those weapons away.
  • Only the Secret Service prevented Trump from going to the Capitol with the mob.
  • He didn’t want to tell the mob to leave the Capitol, because (in Meadows’ words) “He thinks Mike deserves it. He doesn’t think they’re doing anything wrong.”

We’re still guessing what Trump planned to do if he got to the Capitol, but Hutchinson testified “I know that there was a conversation about him going into the House chamber at one point.” She said that on January 2 Rudy Giuliani told her about plans for the 6th: “The President’s going to be there. He’s going to look powerful. He’s — he’s going to be with the members. He’s going to be with the Senators.”

Breaking into the Capitol at the head of an armed mob to prevent Congress finalizing the election he lost — that sounds like something from the final days of the Roman Republic.

But if you’re mainly focused on GOP politics, probably the most significant aspect of Hutchinson’s testimony was how humiliating it was for Trump. In a dispassionate voice, she told about incidents when Trump behaved like a bratty toddler.

She described helping the White House valet clean ketchup off the wall of the Oval Office dining nook, after Trump had thrown his lunch at the wall. (He was upset because Bill Barr had told the public that his election-fraud claims were false.) She said that it was not the only time Trump had broken White House dishes during a fit of anger.

Putting this in presidential perspective: Remember what a scandal it was when Obama put his feet up on the Resolute Desk? “This arrogant, immature & self-centered man has no sense of honor, or of simple decency,” declared

Imagine if our first Black president had broken White House china in a temper tantrum and left ketchup stains on the walls!

And then there was Hutchinson’s second-hand account of Trump trying to force the Secret Service to drive him to the Capitol.

And when [Secret Service Agent] Bobby [Engel] had relayed to him we’re not, we don’t have the assets to do it, it’s not secure, we’re going back to the West Wing, the president had a very strong, a very angry response to that.

Tony [Ornato] described him as being irate. The president said something to the effect of “I’m the f’ing president, take me up to the Capitol now” to which Bobby responded, “Sir, we have to go back to the West Wing.” The president reached up towards the front of the vehicle to grab at the steering wheel. Mr. Engel grabbed his arm, said, “Sir, you need to take your hand off the steering wheel. We’re going back to the West Wing. We’re not going to the Capitol.”

Mr. Trump then used his free hand to lunge towards Bobby Engel. And Mr. — when Mr. Ornato had recounted this story to me, he had motioned towards his clavicles.

Trump has always been more concerned about his image than about the law, so TrumpWorld responded to this account rather than the parts of Hutchinson’s testimony that were more legally damaging.

An anonymous source countered Hutchinson’s testimony-under-oath by claiming that “Two Secret Service agents are prepared to testify before Congress that then-President Donald Trump did not lunge at a steering wheel or assault them.” This is a very specific denial that I could imagine as part of testimony that supported 99% of what Hutchinson claimed. (“It was more of a reach than a lunge, and I wouldn’t describe that as an assault.”)

CNN then found other anonymous Secret Service agents who backed up Hutchinson’s account. Whether the incident happened exactly as she described it or not, it is clear that Hutchinson did not make the story up. It was circulating in the White House, as she said. She never claimed to be in the car, witnessing the tantrum herself.

We’ll see if any of this additional testimony actually happens. After all, Trump and his people have a long history of promising proof that never appears. Hutchinson made her statements under oath, and that has to give them more credibility than anonymous sources describing what somebody else might be willing to say.

In addition, I find it striking that no one from TrumpWorld stepped up to dispute the legally damaging parts of Hutchinson’s testimony. It’s scary that a guy who can’t be trusted with the White House china had the nuclear codes, but breaking dishes isn’t illegal.

Here’s a point that the I don’t think is getting enough stress in the public conversation: This is not a debate between two versions of what happened on January 6. The committee is presenting a narrative of what happened, and Trump’s people are refusing to discuss the matter — not just refusing to testify under oath, but refusing to comment at all. Trump complains about the hearings being “one-sided”, but he has chosen not to present a side.

If he had the confidence and courage to go under oath, as Hillary Clinton did during the Benghazi hearings, Trump (or Mark Meadows or Rudy Giuliani) could tell the committee (and the country) an alternate story, if he has one.

But even short of testimony, Fox News would readily give Trump all the air time he wants, with none of that annoying cross-examination or fact checks or follow-up questions or risk of perjury. He could explain why he didn’t believe his own experts when they told him that his fraud claims were false, and that Mike Pence had no power to reject electoral votes certified by the states. He could tell us which of his many debunked fraud claims he still believes, what the fake electors were for, what he intended the crowd to do when they got to the Capitol, when he first learned that violence had broken out, what he was thinking when he attacked Vice President Pence in a tweet (and in particular, did he know at the time that the crowd was already calling for Pence to be hung?), why he waited so long to ask the rioters to go home, and so on.

But he won’t do any that. His “side of the story” never gets any more detailed than saying that he did nothing wrong.

He refuses to go on the record in any form (and certainly not under oath) because he knows that he can’t defend any detailed account in which he did nothing wrong.

He knows he’s guilty.

All of which raises the question: Will it make any difference? Will the Justice Department indict Trump? Or anybody inside the White House who wasn’t physically present at the Capitol Insurrection? Lawrence Tribe says yes. Jeffrey Toobin urges DoJ not to. Jack Goldsmith says it’s a tough decision.

The January 6 hearings are accomplishing more than you think

You may not see it, if you don’t understand how conservatives change their minds.

After more than two years of Covid, persistent inflation, and a year or so of Democrats failing to either eliminate the Senate filibuster or pass anything significant in spite of it, lots of us have gotten depressed. One result of that widespread depression is that every news story is seen through a lens that is dim to the point of blackness: Nothing good is happening, because nothing good can happen. That’s just how the world is. Even stuff that looks good for a while will ultimately turn out badly.

So it’s no wonder that even the January 6 hearings — which have contained startling new information and dramatic testimony, presented with considerable narrative skill — are often being construed as yet another disappointment, yet another example of America’s endemic hopelessness: Sure, the ratings have been better than expected, but the only people watching are the people who don’t need to watch. They were already convinced Trump was guilty. That’s why they’re watching.

Fox News, on the other hand, is pretending the hearings aren’t happening, and the MAGA cultists are averting their eyes. Sean Hannity and Tucker Carlson are talking about Biden falling off his bicycle or some other trivia. So what’s being accomplished?

Let me suggest a radical reinterpretation of these facts: MAGAworld refusing to engage is a good sign. This is exactly what you should have expected to see if things were going well.

That reframing depends on understanding two things: First, nothing gets watched by everybody, and yet somehow the information gets out. You didn’t have to watch the Super Bowl to learn that the Rams won. People who have never seen Star Wars know who Luke Skywalker and Darth Vader are; if you talk about a “flaw in the Death Star”, they’ll get the metaphor. Hit songs you don’t like nonetheless get into your head. Personally, I have done my best not to keep up with the Kardashians, but there seems to be no way to avoid it.

So don’t think Trumpists aren’t learning anything from these hearings.

But the more important thing you need to appreciate is how conservatives change their minds. They do it without ever admitting they were wrong. Typically the process goes like this:

  1. “I believe X, and anybody who denies X hates America.”
  2. Silence.
  3. “I never believed X. The people behind X were never true conservatives.”

Blocking out the hearings is Step 2. They’re looking away because they know they have no answers. If they thought they could take on this argument and win, at least in their own eyes, they’d be all over it. Fox News could be doing nightly counter-programming, tearing apart the committee’s witnesses and letting John Eastman and Rudy Giuliani and Jeff Clark explain their side of the story. Mike Pence and Pat Cipollone could be begging to testify under oath, so they could refute all the other witnesses’ testimony.

It’s not happening. Even the most blinder-wearing Trumpist understands that his side doesn’t dare take the field in this battle. Even if they don’t understand why, it’s got to be undermining their confidence.

Instead, there’s silence. Step 2.

The clearest historical example of the three-step process is White Evangelicals and segregation. During the 50s and 60s when the issue was being decided, White Evangelicals almost unanimously defended Jim Crow. Jerry Falwell, for example, preached in 1958:

If Chief Justice Warren and his associates had known God’s word and had desired to do the Lord’s will, I am quite confident that the 1954 decision [to desegregate public schools] would never have been made. The facilities should be separate. When God has drawn a line of distinction, we should not attempt to cross that line.

Today, if you look, you can still find openly white-separatist branches of Christianity. But they’re on the fringes. No big-name preacher of the Religious Right would denounce Brown v Board of Education in the stark terms Falwell used.

But you know what you won’t find? A come-to-Jesus moment when some major preacher announced that he had been wrong about race, begged God’s forgiveness for his errors, and implored his congregation to turn themselves around in a similar way.

It never happened.

Instead, sometime in the 70s most right-wing preachers just stopped talking about the bad old days of Jim Crow. (Falwell’s segregationist sermons quietly disappeared from his church’s web site. Today, the only place you’ll find the quote above is in anti-Falwell articles.) And years later, when they started talking about the Civil Rights movement again, they had always been on the right side of it. After all, Martin Luther King Jr. was a Baptist, right?

Same thing with George W. Bush and the Iraq War. In 2002, nobody was hotter to invade Iraq than conservatives, and after the initial invasion overran the country quickly with few American casualties, right-wingers were arguing about just how high Bush should rank on the list of our greatest presidents. (Probably not in the Washington/Lincoln stratosphere. But maybe in the Reagan/Truman tier.)

Sometime during his second term, though, they started to go silent about Bush’s greatness, and by 2010, the Tea Party was claiming that Bush had never really been a conservative at all. Bush went from the highest presidential approval rating ever recorded — 90% in 2001 — to one of the lowest — 25% in 2008. During that whole time, though, I don’t remember hearing anyone admit that they’d been wrong about him.

There was no I-have-seen-the-light moment about Iraq comparable to Walter Cronkite turning against the Vietnam War. Conservatives just went silent for a while, and when they spoke up again, it was to claim that they had always been on the other side. Donald Trump is a perfect example. At first he was for the invasion. Then he thought it was a good idea that Bush had screwed up. Then he had always been against it.

So if you’re depressed that no MAGA types are facing up to the way that Trump fooled them, don’t be. That was never going to happen. But it doesn’t mean that Trump won’t someday be a friendless pariah.

I feel very confident in predicting that there will never be a we-were-wrong-about-Trump moment, either for the GOP in general or for your cousin who posted all those MAGA memes on social media. But you know what could happen? They might focus their outrage on something else for a while — critical race theory or transgender people or something — and then at some point start saying, “Trump did a lot of good things, and I like his Supreme Court picks, but I never bought all his bullshit.”

That could be happening right now.

Three Supreme Court decisions with long-term consequences

Scrapping abortions rights got the headlines. But don’t ignore the Court’s assault on gun regulations and the separation of church and state.

Late June tends to be a big time for the Supreme Court. Like freshmen who have put off writing their term papers until the last minute, the Court typically unleashes a flurry of decisions just before leaving town for the summer.

The end of this term has been more significant than most. Last week, three major decisions were published, along with several lesser decisions. The Dobbs decision reversing Roe v Wade was immediately consequential, as abortion has already effectively become illegal in a number of states, with more to follow soon. But it also laid the groundwork for future decisions reversing a number of rights: the right to marry someone of the same sex or a different race, to access contraception, or to choose (with your consenting partner) your own sexual practices.

The week’s other two decisions had fewer immediate consequences, but similarly looked like the first steps down a long road. Carson v Makin directly affects only a few families in rural Maine, but announces the Court’s intention to drastically redraw the line between Church and State. NY State Rifle & Pistol v Bruen tosses out a New York gun regulation that has stood for a century, but similarly calls all gun regulations into question.

Let’s take them one by one.

Abortion. Justice Alito’s majority opinion striking down Roe v Wade has barely changed since I wrote about the draft that leaked out in May. So I won’t repeat that material, but instead will focus on the concurrences and dissents from other justices.

Justice Alito’s majority opinion tried to minimize the consequences of this decision, which on the surface only [only!] reversed Roe, but also created a blueprint for throwing out all the substantive-due-process rights. Justice Thomas, on the other hand was explicit about where he wants the Court to go next:

in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,”, we have a duty to “correct the error” established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.

Thomas forgot to mention one other substantive-due-process case: Loving v Virginia, which makes his own interracial marriage legal. (I can see how that might start a difficult conversation: “Sorry, honey, but we were never really married.”) Given the anti-miscegenation laws that existed when the 14th Amendment passed in 1868, it’s hard to see how Loving survives the kind of historical analysis the Court did this week in both Dobbs and Bruen.

Leaning the other way, Justice Kavanaugh not only ignored future reversals, but tried to gloss over the radical nature of this one:

On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.

The obvious implication of that statement is that Kavanaugh would not overrule Congress if it did codify reproductive rights. However, given how duplicitous Kavanaugh has already been on this issue, I wouldn’t count on him following through if such a case reached the Court.

He also waxed philosophical:

The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views.

I’ll be interested to see if Kavanaugh stands by this position the next time a corporate personhood case comes before the Court. The Constitution says nothing about corporations, and yet conservative judges have had no trouble reading between the lines to find “new rights and liberties” for these wealthy and immortal beings.

As I predicted in March, Chief Justice Roberts concurred in upholding Mississippi’s ban on abortions after 15 weeks, but not in overturning Roe completely.

Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy.

That’s typical Roberts, as you’ll see below in the Carson case. He also would destroy Roe, but do it over a period of years by pecking it to death. In this dissent, he makes a doctrine out of that approach:

If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.

Going back to the corporate personhood example, Roberts didn’t recommend this kind of restraint in Citizens United.

The Court’s three liberal justices — Breyer, Kagan, and Sotomayor — wrote a common dissent. Interestingly, they agreed with Thomas that abortion rights are tied to all the other substantive-due-process rights.

The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.

The dissent challenges the legitimacy of ignoring stare decisis to reverse the Roe and Casey precedents.

No recent developments, in either law or fact, have eroded or cast doubt on those precedents. Nothing, in short, has changed. … The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, this Court has often said, “contributes to the actual and perceived integrity of the judicial process” by ensuring that decisions are “founded in the law rather than in the proclivities of individuals.” Today, the proclivities of individuals rule.

It attacks Alito’s history-alone reasoning. If “liberty” means exactly what it did in 1868, that has a lot of unfortunate consequences, particularly for women.

The Court [in Casey] understood, as the majority today does not, that the men who ratified the Fourteenth Amendment and wrote the state laws of the time did not view women as full and equal citizens. A woman then, Casey wrote, “had no legal existence separate from her husband.” Women were seen only “as the center of home and family life,” without “full and independent legal status under the Constitution.” But that could not be true any longer: The State could not now insist on the historically dominant “vision of the woman’s role.”

Guns. In Bruen, Justice Thomas writes for the six conservative justices. Thomas is the justice whose thought process seems most alien to me, and here he loses me early on:

In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.

Heller is the 2008 case in which Justice Scalia invented an individual right to bear arms, independent of any notion of “a well-regulated militia”, as if the Founders just threw that phrase into the Second Amendment on a whim.

Judges and legal scholars before Scalia had laughed at this interpretation, which had not figured in any previous Supreme Court decision since the beginning of the Republic. In 1990, retired Chief Justice Warren Burger, who had been appointed by Richard Nixon and at the time was not anyone’s idea of a liberal, called such an interpretation of the Second Amendment “a fraud on the American public“. John Paul Stevens, who wrote the primary dissent in Heller, called it “the Supreme Court’s worst decision of my tenure“.

And then we get to “the Second Amendment’s plain text”. I have explained previously (and at length) why I don’t think the text of the Second Amendment means anything at this point. (Briefly, the Founders’ vision of the role of the militia bears no resemblance to any institution that currently exists: not the National Guard, and certainly not self-appointed yahoos who run around in the woods wearing camo. History just went a different way. The Second Amendment, basically, is a signpost on a road not taken.) So the idea that the Second Amendment has a “clear text” that “covers” something in today’s world — that’s just wrong. If we can’t repeal it and start over, the most sensible approach would be to ignore it.

Anyway, Heller is the archetypal “originalist” decision: It does some grammatical sophistry that has basically nothing to do with the issues the Founders actually cared about, and then — surprise! — deduces that the Founders agreed with the author.

This is what Thomas is building on.

Thomas follows the statement above with:

The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

The regulation in question in this case is New York’s state law that requires gun owners to have a license, and which denies licenses for people to carry guns outside their homes unless they “demonstrate a special need for self-protection distinguishable from that of the general community.” The two New Yorkers bringing suit claim that it should be up to them to decide if they need a gun for self-defense, not up to the state.

Thomas then has to judge whether this regulation is “consistent with the Nation’s historical tradition of firearm regulation”. But he then edits that history in a very convenient way: Pre-colonial English history is too early to matter (though it wasn’t when assessing abortion laws in Dobbs). Gun regulations in the Wild West come too late. Even colonial and federal-era history can be swept away with the proper hand-waving.

Thus, even if these colonial laws prohibited the carrying of handguns because they were considered “dangerous and unusual weapons” in the 1690s, they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.

And two post-Civil-War cases in Texas “support New York’s proper-cause requirement”, but they can be dismissed as “outliers”. When the Kansas Supreme Court upheld a “complete ban on public carry enacted by the city of Salina in 1901”, its decision was “clearly erroneous”. And the New York law Thomas is overturning was passed in 1911. (Justice Breyer’s dissent correctly sums up Thomas’ historical analysis as “a laundry list of reasons to discount seemingly relevant historical evidence.” The dissent in Dobbs makes fun of how Thomas’ cramped view of history in this case contrasts with Alito’s expansive citation of sources back to the Middle Ages in Dobbs. Thomas, naturally, signed on to Alito’s opinion, and his concurrence did not correct Alito’s historical analysis.)

Thomas’ whole historical method ignores the possibility that early American legislators believed they had a perfect right to regulate firearms, but didn’t see any special need at the time. (Breyer: “In 1790, most of America’s relatively small population of just four million people lived on farms or in small towns. Even New York City, the largest American city then, as it is now, had a population of just 33,000 people. Small founding-era towns are unlikely to have faced the same degrees and types of risks from gun violence as major metropolitan areas do today, so the types of regulations they adopted are unlikely to address modern needs.”)

And so, having adopted Heller’s interpretation of the Second Amendment and eliminated any conflicting examples from consideration, Thomas reaches his conclusion.

At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement. The Second Amendment guaranteed to “all Americans” the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions. Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” in order to carry arms in public.

Justice Breyer’s dissent raises the central failing of Thomas’ dogmatic approach.

The question before us concerns the extent to which the Second Amendment prevents democratically elected officials from enacting laws to address the serious problem of gun violence. And yet the Court today purports to answer that question without discussing the nature or severity of that problem.

In other words, Thomas loses himself in estimating how many angels could dance on a pinhead in the 1790s, without any concern for what is happening today. (Alito’s concurrence berates Breyer for even daring to consider the present-day problem the law in question is trying to address.) Breyer finds that “decisions about how, when, and where to regulate guns [are] more appropriately legislative work”, and that judges should show “modesty and restraint” in overruling legislatures who take on that work. And he raises this key question:

[W]ill the Court’s approach permit judges to reach the outcomes they prefer and then cloak
those outcomes in the language of history?

I think we know the answer to that one.

Church and State. Because John Roberts doesn’t sign on to decisions like Alito’s reversal of Roe, he has gotten an image as the “moderate” on the Court. I don’t think that’s exactly true. Roberts is every bit as radical as the five who signed Alito’s opinion. He just moves towards his extreme goals in a stealthier, more step-by-step fashion. Roberts is like the thief who doesn’t strip your whole orchard in one night; but he leaves a hole in the fence and keeps coming back.

Campaign finance is a good example. Roberts didn’t destroy Congress’ ability to control political contributions in one fell swoop. He ate away at it over a period of years.

His majority opinion in Carson v Makin is similarly one of a series of cases that eats away at separation of church and state. On the surface, this decision doesn’t do much: A handful of families who live in rural areas of Maine will be able to get state support to send their children to conservative Christian schools, in spite of the Maine legislature’s attempt not to fund such schools. (And even they won’t get support for the schools they want, because Maine’s law also disqualifies schools that discriminate against gays and lesbians.)

To get that tiny result, though, Roberts blows a big hole in the wall between church and state. New cases will be coming through that hole for years to come, and the principles established in Carson will funnel more and more public funding to the Religious Right.

Here’s the background: Some rural areas of Maine have so few students that it’s not worth supporting a public high school. Instead, some of them contract with high schools in neighboring districts to take their students. But some don’t even do that. If you live in one of those, you can get tuition reimbursement from the state to send your children to a private high school that meets certain requirements. One requirement is that the school be “nonsectarian”. That condition was added in 1981, after the state attorney general ruled that paying tuition to a sectarian school would violate the Establishment Clause of the First Amendment.

Maine has a fairly narrow definition of “sectarian”. It’s OK for a school to be founded by or associated with a church or other religious organization. But public money was banned from going to a school which

in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.

The two families that brought suit against this policy live in Glenburn (population 4,648) and Palermo (1,570). They want Maine to help them pay tuition to schools that clearly are sectarian. For example, one of the schools, Temple Academy, has as its mission statement:

Temple Academy exists to know the Lord Jesus Christ and to make Him known through accredited academic excellence and programs presented through our thoroughly Christian Biblical world view.

It goes on to pledge

To provide a sound academic education in which the subject areas are taught from a Christian point of view.

To help every student develop a truly Christian world view by integrating studies with the truths of Scripture.

So Temple is not like a nominally Catholic or Baptist school where students of other faiths might opt out religion classes or worship services. Students who attend any classes at all are being indoctrinated in a conservative Christian worldview, and part of every teacher’s job is to promote a particular version of Christianity.

Also, the Maine law is not like a voucher program, where the legislature delegates choice of schools to parents, understanding that some parents will choose sectarian schools. Maine’s legislature tried NOT to fund religious indoctrination; but Roberts’ decision says that it MUST.

This is new, and it is radical.

Justice Breyer’s dissent (Breyer, who is retiring and will be replaced next term by Ketanji Brown Jackson, is going out with a bang) is a good introduction to how the Court has historically interpreted the First Amendment, which bars any government “establishment of religion” but also guarantees individual citizens “free exercise” of their religious faith. Breyer says that these two clauses are “often in tension” but express “complementary values”. Quoting previous Court decisions, Breyer imagines what motivated the amendment’s two religion clauses.

Together they attempt to chart a “course of constitutional neutrality” with respect to government and religion. They were written to help create an American Nation free of the religious conflict that had long plagued European nations with “governmentally established religion[s].” Through the Clauses, the Framers sought to avoid the “anguish, hardship and bitter strife” that resulted from the “union of Church and State” in those countries.

“Conflict” is a bit of an understatement here. In England, the Anglican/Catholic/Puritan struggle dominated the 1600s, resulting in the beheading of Charles I, a long civil war, and the Glorious Revolution of 1688. On the Continent, the Thirty Years War killed at least 4.5 million people. The Founders knew this history and desperately wanted to avoid repeating it.

Previous Courts held that the tension between the two religion clauses created “play in the joints”. In other words, states had room to navigate between them. One state might choose to draw the line in a different place than another.

States enjoy a degree of freedom to navigate the Clauses’ competing prohibitions.

Roberts started taking that freedom away when he wrote the majority opinion in the 2017 Trinity Lutheran case, where Missouri was forced to include religious schools in a grant program to make playgrounds safer. Breyer can live with that outcome (in 2017 he wrote a partial concurrence), but doesn’t think that decision forces this one.

Any Establishment Clause concerns arising from providing money to religious schools for the creation of safer play yards are readily distinguishable from those raised by providing money to religious schools through the program at issue here—a tuition program designed to ensure that all children receive their constitutionally guaranteed right to a free public education. After all, cities and States normally pay for police forces, fire protection, paved streets, municipal transport, and hosts of other services that benefit churches as well as secular organizations. But paying the salary of a religious teacher as part of a public school tuition program is a different matter.

It’s striking that in this case (as in the gun case above) it is Breyer and the liberals, not Roberts (or Thomas) and the conservatives, who are defending states rights.

We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.

The cases Roberts cites as precedents, Breyer says, don’t justify this shift from permission to requirement.

In the majority’s view, the fact that private individuals, not Maine itself, choose to spend the State’s money on religious education saves Maine’s program from Establishment Clause condemnation. But that fact, as I have said, simply permits Maine to route funds to religious schools. It does not require Maine to spend its money in that way.

This particular decision may not affect many Americans. But Breyer sees clearly where Roberts is headed.

What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education? What other social benefits are there the State’s provision of which means—under the majority’s interpretation of the Free Exercise Clause—that the State must pay parents for the religious equivalent of the secular benefit provided? The concept of “play in the joints” means that courts need not, and should not, answer with “must” these questions that can more appropriately be answered with “may.”

And doesn’t Roberts’ policy implicitly favor more popular religions?

Members of minority religions, with too few adherents to establish schools, may see injustice in the fact that only those belonging to more popular religions can use state money for religious education.

After all, who but Christians will be able to find a market for religious schools in rural Maine? This is a problem I have had with the conservative view of “religious freedom” all along: In practice, it only gives rights to conservative Christians — or, completely by accident, to other religious groups who happen to agree with conservative Christians on a particular issue like abortion or homosexuality.

So it may be amusing to imagine how this ruling might someday be used to make Evangelical taxpayers support a Muslim madrassah, or some other school they would abhor. But I question whether such a thing will ever happen. This Court’s sectarian majority believes in special rights for Christians. It will find ways around extending those rights to anyone else.

Here’s how Sherry Kolb put it in “Are Religious Abortions Protected?“, where she examines the argument (raised in a recent lawsuit filed by a Florida synagogue) that a Jewish doctor may feel religiously obligated to perform an abortion in situations where a state has banned them.

Despite appearances to the contrary, this Court is not especially friendly to Free Exercise claims. … Its rulings instead reflect its friendliness to conservative Christianity and, accordingly, to Judaism and Islam where the ask is minimal or the traditions happen to be the same. Christians can violate the anti-discrimination laws for religious reasons because they are Christians. The sooner we come to understand that the Court is all about Christianity rather than some capacious vision of religious liberty for all, the sooner we will begin the process of finding solutions to our modern-day theocracy problem that do not ask the Court to behave with integrity or consistency.

The hearings, week two

Or “Why I’m not ready to make a hero out of Mike Pence”.

Monday was the second hearing [video, transcript], while the third hearing [video transcript] was Thursday. Two more hearings are scheduled tomorrow and Thursday at 1 p.m.

The daytime hearings have been fleshing out the case presented in the opening prime-time hearing on June 9th, which I covered last week.

Last Monday’s session focused on all the people within the Trump campaign and Trump administration who told Trump he had lost the 2020 election and debunked his claims of fraud. But Trump dismissed the views of Attorney General Bill Barr, his successor Jeff Rosen, campaign chair Bill Stepien, White House lawyer Eric Herschmann, Deputy Attorney General Richard Donoghue, and others as they refuted very specific claims of fraud — claims Trump would keep repeating.

Instead of accepting what his own experts (who christened themselves Team Normal) told him, Trump sought out less qualified people (Team Crazy) who would tell him what he wanted to hear, like Rudy Giuliani and Sidney Powell.

The hearing also surfaced a new possible criminal charge: fund-raising fraud. The people who kept contributing to Trump after the election were told their contributions would go into an “Official Election Defense Fund”.

[C]ommittee investigator Amanda Wick … disclosed that Trump aides Hanna Allred and Gary Coby said no fund technically existed. She also noted that most of the money went to Trump’s Save America PAC and that very little was used for challenging the election results.

So not only did Trump’s fund-raising pitches rely on lies about election fraud — giving Trump a financial incentive to keep lying — they also lied about where contributors’ money would go.

The third hearing centered on the plot to miscount electoral votes that was designed by lawyer John Eastman. As before, Trump’s advisors within the administration told him the plan was illegal and unworkable, but he sought out Eastman to be told that he could still hang onto power.

The plot centered on constructing slates of phony electors from the states where Biden’s win was clear but not overwhelming. Based on Trump’s false claims of fraud, the false electors would have their ballots delivered to Congress. On January 6, Eastman’s plan had Vice President Pence either accepting their votes as legitimate, or refusing to accept any votes from those states because their legitimacy was “contested”. Either would erase Biden’s Electoral College margin and re-elect Trump. Failing that, Pence could send this phony controversy back to the state legislature to be resolved. This would both delay Biden’s recognition as President-elect, and would shift pressure to Republican majorities in the legislatures to reverse the will of their states’ voters. (We might expect mini-January-6 riots in state capitols.)

Widely respected conservative Judge Michael Luttig testified that not only did this plan have “no basis in the Constitution or laws of the United States at all”, it constituted “a clear and present danger to American democracy”, one that continues as we move towards the 2024 election.

Fortunately, Mike Pence chose not to cooperate with this plan. Pence’s chief counsel Greg Jacobs testified at length about the pressure Trump and Eastman put on Pence, and described what could have happened as “a constitutional jump ball situation, political chaos in Washington, lawsuits, and who knows what happening in the streets”. When White House lawyer Eric Herschmann expressed a similar fear to Eastman — “You’re going to cause riots in the streets.” — he reported Eastman “said words to the effect of there has been violence in the history of our country, Eric, to protect the democracy or protect the republic.”

Pence came off well in Thursday’s hearing, looking like a modern-day Horatius-at-the-bridge defending American democracy against coup and chaos. And while I appreciate how hard it must have been to toss away the benefits he had earned by four years of complete subservience, I have a hard time seeing him as a hero.

I think Mike Pence should have won the 2021 Darth Vader Award for waiting until the last possible moment to do the right thing. Similar to Darth, if Mike had done the right thing sometime sooner, maybe that last possible moment would never have arisen. In particular, what if Pence had stated publicly, weeks in advance, that he did not have and would not try to exercise the power to discard electoral votes that had been certified by the states? What if he had announced that he had consulted with the attorney general and others within the Trump administration, and had determined that the Trump/Pence ticket had lost the election fair and square?

Maybe Trump’s cultists wouldn’t have arrived in DC on January 6 with the expectation that Biden’s election could still be reversed. Maybe the 1-6 violence would never have happened.

I interpret Pence’s drama as a microcosm of what the GOP spent four years doing: All through the Trump presidency, Republicans in his administration and in Congress had hoped that someone else would stop him before he destroyed American democracy. That’s why Pence kept temporizing, not committing to Eastman’s coup plan, but telling Trump he’d continue to study it. Maybe the whole thing would fall through for some other reason, and Pence would never have to stand up to Trump and Trump’s cult of personality.

Just about every major Republican — not just Pence, but Mitch McConnell, Kevin McCarthy, and many, many others — could have gone public before things got out of hand, but they decided not to. It was easier just to humor Trump and hope that his whole attempt to stay in office in spite of the voters would just run of steam somehow.

Mike Pence was the one who wound up with no one to pass the buck to. If he had gone along with Trump on January 6, then there would have been no orderly transfer of power, and Trump would either have been overthrown by violence or become de facto autocrat-for-life.

Pence isn’t a hero; he’s just the Republican who lost the game of hot potato.