The week’s most hotly debated line was Trump’s prediction of “a bloodbath … for the country” that will happen “if I don’t get elected”. Biden and others saw this as a call for political violence, while Trump apologists said the statement wasn’t really so bad “in context“.
Let’s unpack all that.
What he said, in context. First off, the reason we’re having a discussion over what Trump meant is that what he actually said is incoherent.
China is now building a couple of massive plants where they’re going to build the cars in Mexico and think, they think, that they’re going to sell those cars into the United States with no tax at the border. Let me tell you something to China. If you’re listening, President Xi — and you and I are friends — but he understands the way I deal. Those big monster car manufacturing plants that you’re building in Mexico right now, and you think you’re going to get that, you’re going to not hire Americans and you’re going to sell the cars to us? No. We’re going to put a 100% tariff on every single car that comes across the line, and you’re not going to be able to sell those cars if I get elected.
Now, if I don’t get elected, it’s going to be a bloodbath for the whole — that’s gonna be the least of it. It’s going to be a bloodbath for the country. That will be the least of it. But they’re not going to sell those cars. They’re building massive factories.
If Biden said something this disjointed, it would be taken as evidence of cognitive decline, because Biden typically makes way more sense than this. But OK, let’s play the what-did-he-mean-by-that game.
Immediate background. Chinese automakers like BYD build some really cheap cars, especially cheap electric cars, that haven’t been marketed widely in the US yet. Apparently there are plans to build such cars in Mexico, and the current trade agreement (which Trump negotiated and bragged incessantly about, remember) might allow those cars to come into the US without a tariff. NHK World (a Japanese news source) says:
A growing number of Chinese automakers have been constructing production plants in Mexico. The trade deal currently in place in North America allows tariff-free vehicle shipments from Mexico to the US if they meet strict conditions.
So at least at the outset, Trump is talking about not letting that happen: He’ll impose a 100% tariff if they try that. [1] The most generous construction to put on Trump’s words (and the one he now says he meant) is that the “bloodbath” is a metaphor describing what will happen to the US auto industry if it has to compete with those cars.
But he also said “that’s going to be the least of it”. It’s an open-ended expansion of the “bloodbath” in the auto industry to “the country”. Is it still metaphoric, referring to large job losses across all US manufacturing, or has it become literal, presaging the “civil war” that many of Trump’s supporters say they want?
Larger background. In his January 6 speech, Trump repeatedly urged his listeners to “fight”, which is a common thing to say metaphorically in a political speech. However, a mob of his listeners then did literally fight, attacking the Capitol and injuring over 100 police with bear spray and flagpoles they used as clubs.
Trump still defends those people. In the same speech where he made the “bloodbath” comment, he called them “hostages”. He has repeatedly promised to pardon them if he’s elected.
So like “fight”, Trump’s “bloodbath” is arguably metaphorical and arguably not. But in any case, it happens in the “context” of Trump’s large number of violent supporters. He knows they’re out there, just as he knew that some of the people listening to him on January 6 were armed. His promise of pardons for the January 6 rioters suggests that people who do violence for him in this election will also be pardoned.
Convenient ambiguity. Trump could, of course, clear this all up. He could give a speech where he unambiguously denounces political violence and disowns supporters who commit crimes in his name — including the January 6 rioters who are not “hostages” or political prisoners, but criminals who have been convicted by juries of their peers of breaking real laws (like assaulting police officers). He could echo what Biden said in the state of the union, that “political violence has absolutely no place — no place in America. Zero place.”
He won’t do that. Instead, he will keep doing what he did Saturday in Ohio: using violent rhetoric as part of a word salad that has no single obvious interpretation, while defending and offering aid to those who have committed crimes on his behalf. When called to account, he will howl about the biased media taking him out of context, and claim that his word salad should receive the most benign possible interpretation.
But he doesn’t deserve that kind of generousity. Voters and the media should apply a principle that lawyers call contra proferentem: If you write something ambiguous into a contract, a court will resolve the ambiguity against you.
Same thing here. Trump repeatedly and knowingly creates ambiguity about whether or not he is rallying his supporters to commit violence after he loses in November. Until he stops, that ambiguity should be resolved against him.
So yes, he did call for violence on Saturday.
[1] There’s a whole other issue here: One of Trump’s big criticisms of Biden is over inflation. But just about every economic proposal Trump has would make stuff more expensive. This is just one example.
Biden is on the right side of many issues the public cares about, like abortion, gay rights, gun violence, Ukraine, climate change, and democracy itself.
The economy has been improving long enough that the public has started to notice.
The Biden administration’s legislative accomplishments validate his view that government can do good things for the American people, like rebuild our roads and bridges, lower the cost of prescription drugs, or bring broadband internet to rural communities. (Trump’s primary legislative accomplishment was to give the wealthy a big tax cut.)
The electorate continues to change in Biden’s favor, as older MAGA voters die off and are replaced by younger, more liberal voters. [1]
But there is one more reason I’m optimistic — not a positive thing about Biden but a negative thing about Trump: He has fallen into the Autocrat Trap.
Trump has declined since 2016. Before I explain what that trap is, let me point out that I’m not the only one to notice that Trump is off his game. In a recent TPM newsletter, Josh Marshall started with a blunder Trump made in an interview (“there is a lot you can do in terms of entitlements in terms of cutting”, which sounds an awful lot like a threat to Social Security and Medicare), and expanded to a more general point, that Trump is “rusty” and has “lost his touch”.
Marshall paints a picture of how Trump’s rhetoric has changed since 2016.
Trump’s 2016 campaign’s success stemmed in large part from channeling the cultural and social grievance of middle aged white American men. His 2024 agenda is heavily focused on his personal grievances and doing away with all the restraints on the presidency that hobbled him and led to ego injuries in during his first term
2016 Trump communicated that your resentments were his resentments, but 2024 Trump has turned that identification around: He wants his resentments to be your resentments. 2016 Trump got upset that “the elites” weren’t giving ordinary people a fair shake. But 2024 Trump wants ordinary people to get upset that “the Deep State” isn’t giving him a fair shake.
2016 Trump literally crowd-sourced his message. “Build a wall” and “Lock her up” started as throw-away lines, but when his crowds responded to them they became the center of his campaign. But 2024 Trump’s relationship to the crowd has changed.
Even in Trumpian terms his speeches these days are disjointed, weird, discordant. And again — not by the standard of who you might want within a mile of the Oval Office. I mean even in terms of Trumpian politics. He’s not the same.
Marshall doesn’t assign a definite cause to this “rustiness”, but suspects age might be a factor, together with the sting of his 2020 defeat (which he knows was a defeat, no matter what he says), and panic about the legal peril he faces.
Whatever the precise mix, it also impacts his political agility and feel for the popular mood. It leads to stuff like this wholly unforced entitlements goof. This probably won’t be the only example. It hasn’t gotten much attention yet because even though Trump gets coverage, he hasn’t been in the mix of an actual campaign in years. We’ll see more of it because, again, he ain’t the same.
Actually, it’s already not the only example: Trump gave away his best issue by telling Speaker Johnson to torpedo the border bill that Congress was ready to pass. Now Biden has an answer to criticism on that issue: I tried to solve it, but Trump had his allies stop me. The inaction on the border is now arguably Trump’s fault, not Biden’s. [2]
And while I agree that Trump is showing some decline from aging, I don’t think that’s the main source of his recent (and future) mistakes. I think he’s fallen into what we might call the Autocrat Trap: His successful purge of his inner circle, together with his complete intimidation of the Republican Party, means that he is surrounded by sycophants. Absolutely no one is in a position to tell him “You can’t do that. That’s a bad idea.”
Even a great leader needs such people. George Washington had them. Lincoln had them. FDR had them. Trump doesn’t.
How the Autocrat Trap works. I’m going to make a Hitler comparison here, but not so that I can smear Trump by using his name in the same paragraph as one of history’s most hated people. If you want to object that Trump hasn’t started a world war or set up death camps, that’s fine; it doesn’t affect the point I’m making.
I’m mentioning Hitler because he is a well known and extreme example of an autocrat. If there were some dysfunction typical of autocrats, we’d expect to see it in Hitler. And we do.
By 1936, Hitler had eliminated public political dissent, but he still had to face behind-closed-doors resistance from his general staff (the 1930s German equivalent of “the Deep State”). In a nutshell, Hitler was a risk-taker and the generals were more cautious. The military men recognized Germany’s rearmament was incomplete, and understood that the Fatherland would lose any rematch with France and/or Britain. But Hitler grasped just how traumatized the British and French people still were by the Great War of 1914-1918, and bet that their elected leaders would avoid restarting that war, even if they would surely win it again.
So over the generals’ protests, Hitler ordered one audacious move after another: advancing into the Rhineland demilitarized zone bordering France (1936), Austria (spring of 1938), the western section of Czechoslovakia (fall of 1938), and the rest of Czechoslovakia (spring of 1939). As Hitler had foreseen, the Western Powers did nothing. The invasion of Poland (fall of 1939) brought declarations of war, but no counterattacks. Denmark and Norway (April, 1940) fell with little opposition.
By then, rearmament was complete and Germany was ready to reverse the outcome of the Great War: France, Belgium, and the Netherlands fell in May of 1940, and the air war against Britain began.
Picture Hitler at that point. He was a gambler with hot dice. He had proved again and again that when cautious people tried to hold him back, they were wrong and he was right. So why should he listen to them at all? Events had shown that he was a genius. He had a destiny.
That’s when the big mistakes started. He attacked Russia before he had finished off Britain. He let the Greek campaign delay the Russian campaign. And then, rather than postpone until the next spring, he launched his attack in late June of 1941. Due to the late start, and despite initial military successes, German forces were still short of Moscow when the fall rains turned Russia’s roads to mud. In winter, the Russians counterattacked. Hitler’s generals advised pulling back to a more defensible position and restarting the advance in spring. But why would he listen to them? They had always advised more caution, and they had always been wrong. So: no retreat, not a single inch.
German losses that winter were horrific, turning the Russia campaign into a war of attrition that put Germany at a disadvantage. And though the German advance was able to restart when the weather changed, those first-winter casualties contributed to the decisive defeat at Stalingrad in early 1943. The Allies launched D-Day from the still unconquered British Isles in 1944, and the war was soon lost.
Trump 2024 vs. Trump 2016. When Trump ran in 2016, the Republican establishment was against him. As he won one primary after another, they slowly got on board. But many got off again after the Access Hollywood tape leaked a month before the election. Some even called for him to withdraw. (Luckily for Trump, he managed to keep Stormy Daniels’ story from getting out and making things worse, and his allies at WikiLeaks were able to muddy the news cycle by releasing a batch of Democratic emails hacked by his allies in Russia.)
Thanks to the Electoral College, he won anyway, proving that he was right and the naysayers were wrong. But even as he took office, many power players in Washington had no particular loyalty to him, like Speaker Paul Ryan and Majority Leader Mitch McConnell.
A new president has to appoint thousands of executive branch officials. But who? TrumpWorld had never been that big, and McConnell’s Senate was unlikely to confirm Trump yes-men with no relevant experience. So initially, the Trump administration was staffed with veterans of the Bush administration or Congress, CEOs, and military men who saw themselves as Republican or conservative, but not necessarily MAGA. Again and again, such appointees got in Trump’s way: Attorney General Jeff Sessions (the first senator to endorse Trump’s candidacy) appointed Special Counsel Bob Mueller and refused to interfere in his investigation. National Security Advisor H. R. McMaster and Defense Secretary James Mattis repeatedly stopped him from withdrawing from Afghanistan. White House Counsel Don McGahn refused Trump’s order to fire Mueller and regularly warned him that things he wanted to do were illegal.
By 2020, many of the Trump officials more loyal to the law or the nation than to Trump had either been fired or left in frustration. But apparently not enough of them, so Trump appointed John McEntee to conduct a purge of his insufficiently loyal subordinates, many of whom were replaced with “acting” officials the Senate never confirmed.
Even so, after Trump lost the 2020 election, his effort to stay in office anyway was repeatedly hindered by members of his own administration. Vice President Mike Pence refused to cooperate in the January 6 plot. Joint Chiefs Chair Mark Milley made it clear the military would not intervene in his favor. Acting Attorney General Jeff Rosen wouldn’t sign Jeff Clark’s bogus letter telling the Georgia legislature that the Justice Department had “identified significant concerns that may have impacted the outcome of the election”, and also led a department-wide threat to resign if Trump named Clark to replace him. The previous attorney general, Bill Barr, publicly denied that the Department had found any evidence of the election fraud Trump was claiming.
All those people are gone now. They have been branded as turncoats and banished from any future Trump administration. Even Ivanka and Jared have withdrawn. [3]
In the meantime, the MAGA cult has expanded. Much of the attention this has gotten has focused on a potential second Trump administration: The Heritage Foundation has launched Project 2025 to collect resumes of loyalists hoping to staff the next administration.
Unlike previous presidential transition teams, this one is focused on personal loyalty, not experience or other qualifications. (A question from the application: “The president should be able to advance his/her agenda through the bureaucracy without hindrance from unelected federal officials. Agree/Disagree/Neither.”) So when Trump-47 decides to overthrow democracy, the only question he’ll face is “How do you want us to proceed, sir?”
But something similar has happened elsewhere, and the consequences have gotten less attention. Trump’s lawyers have become little more than mouthpieces for what he wants the public to believe about his trials, whether that strategy helps or hurts him inside the courtroom. (Judging from the size of the civil judgments against him, it hurts.) On the political side. Trump has made his daughter-in-law head of the RNC and started a purge of the staff.
So across the board, anybody who might have the independent stature to say, “I know you’re the boss, but this is dumb” is long gone. Even after a mistake is in motion, nobody is going to point it out to him.
So far, his blunders haven’t hurt him much, largely because he hasn’t been getting that much attention. He stayed away from mass-viewer events (like debates) during the primary campaign, and the mainstream media has all but stopped covering his rallies. Most voters have barely seen the 2024 version of Trump, and have barely paid attention to his pronouncements on major issues.
That has started to change, and will change more and more as the election approaches. This summer’s Republican Convention, I predict, will be a major disaster for Trump, because he will have complete control of it. And day after day, all the way to the election, a sycophant-supported Donald Trump on the campaign trail will be Joe Biden’s greatest asset.
[1] The replacement-by-illegal-immigrants story Trumpists tell is nonsense, but the fact that they are being replaced — by their children and grandchildren — is true. Trumpists helped this trend along by refusing to be vaccinated during the pandemic.
[2] Whether or not Trump’s prediction of a “bloodbath” if he doesn’t get elected is such a mistake was a point of contention this week. I’ll cover that in detail in the next post, the weekly summary.
[3] In the 2017-2021 administration, Ivanka and Jared were believed to have the ability get Trump to see reason. That’s why Susan Collins called Ivanka during the January 6 riot.
In his State of the Union address, President Biden claimed credit for his accomplishments, drew the contrast with “my predecessor”, announced goals for his second administration, and demonstrated a mental stamina and dexterity that he’s not supposed to have. By contrast, Senator Britt’s Republican response was creepy, dishonest, and insubstantial.
Where was that addled, feeble old man I’ve been hearing so much about?
If that’s who you were expecting to see at the State of the Union, you got a shock: While President Biden did occasionally stumble over his prepared text (the way he has since the beginning of his career), he was focused, coherent, and energetic. After standing and speaking for an hour, he was still smartly getting the best of his Republican hecklers (just as he did last year).
It’s hard to overstate how important that demonstration of mental acuity was. For years, Fox News has been selectively editing Biden to make him look confused (and ignoring all the comparable Trump moments). Fox talking heads (like Britt Hume) have been claiming — based on neither personal interactions nor expert medical analysis — that Biden is senile. And Trump has been telling his crowds that Biden “barely knows he’s alive“. More recently, the NYT and other mainstream sources have been echoing lesser versions that talking point, looking for every opportunity to highlight Biden’s verbal stumbles and emphasize Democrats’ anxiety over an issue that they themselves had been fanning.
Biden has had a hard time breaking through this negative narrative, because every story becomes a story about his age — similar to the way that every Hillary Clinton story became a story about her bogus email scandal in 2016.
Finally, though, the American people got a chance to see Biden in his entirety, rather than edited to fit some preconceived frame. They saw Joe Biden as he has always been: a politician not terribly skilled in oratory, but possessing a clear mind, a straightforward manner, a record of practical accomplishments, and a basic decency that contrasts well with the self-centered dishonesty of his general election opponent (a contrast Senator Britt’s response unintentionally emphasized with an outright lie).
As important as the optics of the speech were, it also had significant content, both in how it discussed issues of the present as well as an appealing vision of the future.
So let’s talk about that content, before going on to discuss the unintentionally revealing response given by Alabama Senator Katie Britt. (Like the speech itself, the summary is lengthy. Feel free to skip ahead.)
What he talked about. The early part of Biden’s speech was devoted to issues where large majorities of the American people agree with him, but Trump and congressional Republicans don’t: Ukraine, January 6, and reproductive rights. He linked the three as “freedom and democracy”, which are “under attack at home and overseas”.
Ukraine was the “overseas” part. Biden took credit for making NATO “stronger than ever”, and said that the aid Ukraine needs to defend itself from Russia’s invasion was being “blocked by those who want to walk away from our world leadership”.
I say this to Congress: We have to stand up to Putin. Send me a bipartisan national security bill. History is literally watching. History is watching. If the United States walks away, it will put Ukraine at risk. Europe is at risk. The free world will be at risk, emboldening others to do what they wish to do us harm.
January 6 was democracy under attack at home. He accused “my predecessor” (in the entire speech he never said Trump’s name) and “some of you here” of “seeking to bury the truth about January 6”. Here, he didn’t call for legislation, but for a more subtle kind of bipartisan action.
Many of you were here on that darkest of days. We all saw with our own eyes the insurrectionists were not patriots. They had come to stop the peaceful transfer of power, to overturn the will of the people. … I ask all of you, without regard to party, to join together and defend democracy. Remember your oath of office to defend against all threats foreign and domestic. Respect free and fair elections, restore trust in our institutions, and make clear political violence has absolutely no place — no place in America.
The rollback of reproductive rights Biden framed as “another assault on freedom”, and he challenged Republicans to guarantee access to in vitro fertilization. (A bill to do that is being blocked by Republicans in the Senate.) He pointed to state bills banning abortion and to Republican proposals for a national ban after some number of weeks.
My God, what freedom else [see footnote 1] would you take away? … If you, the American people, send me a Congress that supports the right to choose, I promise you I will restore Roe v. Wade as the law of the land again.
The second chunk of the speech was Biden’s telling of the story of his administration, beginning with what a shambles the country was when Trump left office. [2]
Four years ago next week, before I came to office, the country was hit by the worst pandemic and the worst economic crisis in a century. Remember the fear, record losses? Remember the spikes in crime and the murder rate? A raging virus that took more than 1 million American lives of loved ones, millions left behind. A mental health crisis of isolation and loneliness.
He described the comeback from those lows as “the greatest story never told”.
Folks, I inherited an economy that was on the brink. Now, our economy is literally the envy of the world. [3]
He listed his administration’s economic accomplishments:
15 million jobs created
unemployment at 50-year lows
16 million new small businesses
800,000 new manufacturing jobs
more Americans have health insurance than ever before
the smallest racial wealth gap in 20 years
billions of private-sector investment in high-tech manufacturing and clean energy
rebuilding infrastructure around the country (repairing roads and bridges, replacing lead pipes, extending rural broadband, …)
He segued from the past to the future by talking about prescription drug costs: Insulin now costs Medicare patients at most $35 per month, down from as much as $400. Medicare has started to negotiate down the prices of several drugs, a number that will rise to 500 drugs over the next ten years. He has capped total prescription drug costs at $2,000 per person under Medicare, and wants to extend that cap to everyone. He has outlawed a number of hidden fees and wants to get rid of more of them.
He proposed a number of plans to lower housing costs, both for buyer and renters; also education costs and the burden of student loans.
Biden recognizes that none of that is possible without the wealthy and corporations “paying their fair share” of taxes. He pointed to Trump’s budget-busting tax cut, and to Republican plans to give the wealthy more tax breaks. [4] The current tax rate on the nation’s 1,000 billionaires, he claimed, is 8.2%, “far less than the vast majority of Americans pay”. He proposed a minimum billionaire tax rate of 25% that he said would raise $500 billion over the next ten years, and invited America to imagine what could be done with that money: affordable childcare, paid leave to take care of family members, home care that keeps the elderly and disabled out of nursing homes.
Then he got to Republicans’ favorite issue, the border.
In November, my team began serious negotiations with a bipartisan group of senators. The result was a bipartisan bill with the toughest set of border security reforms we’ve ever seen.
This, of course, is the bill Republicans asked for, supported, and then turned against when Trump told them that he would rather run on the border problem than let Biden do something to improve the situation. Biden listed what the bill would have provided:
That bipartisan bill would hire 1,500 more security agents and officers, 100 more immigration judges to help tackle the backload of 2 million cases, 4,300 more asylum officers, and new policies so they can resolve cases in six months instead of six years now. [To catcalling Republicans] What are you against?
One hundred more high-tech drug detection machines to significantly increase the ability to screen and stop vehicles smuggling fentanyl into America that’s killing thousands of children.
This bill would save lives and bring order to the border. It would also give me and any new president new emergency authority to temporarily shut down the border when the number of migrants at the border is overwhelming. [5]
When Biden began to explain how Trump instructed Republicans in Congress to tank the bill, Marjorie Taylor Greene (apparently seeing the effectiveness of the point Biden was making) broke in with a yell of “Say her name” about Georgia nursing student Laken Riley, who allegedly was murdered by an undocumented immigrant. Biden took the challenge, but pronounced her name wrong before pointing out that thousands are killed by people who are here legally. [6] He went on to explain that making our system for evaluating asylum claims more efficient (as the proposed bill would do) would lower the incentives for people without legitimate claims to cross the border in the first place.
Biden challenged Trump to join him in urging passage of the law, but then drew a contrast.
I will not demonize immigrants, saying they are “poison in the blood of our country.” I will not separate families. I will not ban people because of their faith. … Look, folks, we have a simple choice: We can fight about fixing the border or we can fix it. I’m ready to fix it. Send me the border bill now.
Like most SOTU’s the end of the speech was full of a list of proposals too long to go into here, leading up to this conclusion:
I see a future where [we’re] defending democracy, you don’t diminish it. I see a future where we restore the right to choose and protect our freedoms, not take them away. I see a future where the middle class has — finally has a fair shot and the wealthy have to pay their fair share in taxes. I see a future where we save the planet from the climate crisis and our country from gun violence.
Above all, I see a future for all Americans. I see a country for all Americans. And I will always be President for all Americans because I believe in America. I believe in you, the American people. You’re the reason we’ve never been more optimistic about our future than I am now.
So, let’s build the future together. Let’s remember who we are. We are the United States of America. And there is nothing — nothing beyond our capacity when we act together.
Senator Britt’s response. Republicans choose 42-year-old freshman Senator Katie Britt of Alabama to make their official response. [video, transcript] I’m sure this seemed brilliant to them in a high-concept way: Britt is young and female, while Biden, Trump, and most of the Republican base are old and male. They want to paint Biden as a creature of Washington out of touch with American families, so it made sense to choose a newcomer to Congress who has no previous national profile, and to place her at a typical-family’s kitchen table.
But then she opened her mouth and it all fell apart. As with Biden’s speech, it’s possible to comment at length about either the form or the substance. The form has gotten a lot of criticism elsewhere, most notably from SNL’s cold open, where Biden cuts his remarks short because “I caught a glimpse of the Republican senator’s response to my speech, and I think she’s going to help me more than anything else I can say here.” Then Scarlett Johansson does a spot-on Britt impersonation, saying “tonight I’m going to be auditioning for the part of Scary Mom”.
Lots of people saw Britt’s performance as scary, including Kat Abu, who closed her weekly stories-you-missed-on-Fox summary with
I hope all of you stay safe, and when you go to sleep, make sure to check under your bed for the Alabama junior senator.
Others described her as a Stepford wife, and many women took offense at Republicans placing a female United States senator in a kitchen, as if to say that’s where women really belong, regardless of their accomplishments. You can find lots of such criticism if you look for it.
But I’d like to focus on the content of her remarks, because it epitomizes something basic about Republican politics: She emphasized identity and emotion without any hint of how Republican policies might help the people she supposed cares so much about.
For example, she said:
We strongly support continued nationwide access to in vitro fertilization.
But she did not address the fact that Republican-appointed judges are the ones who put IVF in jeopardy, and a Republican senator is blocking consideration of a bill to guarantee IVF access. So what does the GOP’s “support” mean in any practical sense?
Or consider this guy:
I’ll never forget stopping at a gas station in Chilton County one evening. The gentleman working the counter told me that after retiring, he had to pick up that job in his 70s so he didn’t have to choose between going hungry or going without his medication. He said, “I did everything right, everything I was told to do — I worked hard, I saved, I was responsible.”
Much of Britt’s response focused on the border. I’ll let Rachel Maddow provide the proper context:
She was one of the senators who was involved in the negotiations to create a border bill. She helped create the bill. And then voted against it when Trump called on Republicans to pull the plug on the bill that they themselves negotiated
So again: Britt appears to care deeply about the situation at the border. She just doesn’t want to do anything about it. And then she tossed the Republican base some red meat with an egregiously dishonest anecdote that the WaPo fact-checker rated as a four-Pinocchio lie:
She told the story of a woman who “had been sex trafficked by the cartels starting at age 12”. Britt made it sound like her deal was a consequence of “Joe Biden’s border crisis”, a phrase that she used both before and after the story.
The woman is real enough (her name is Karla Jacinto Romero) and there’s no reason to doubt that she was trafficked and repeatedly raped. But those events had nothing to do with Biden or US border policies: They happened in Mexico during the Bush administration.
WaPo goes on to explain that Britt’s lie is part of a bigger lie:
When Donald Trump was president, he regularly decried human trafficking that he claimed was happening at the border, including that “thousands of young girls and women” were being smuggled across the border for prostitution. In 2019, we investigated that claim and found no evidence to support it. Most human trafficking prosecutions generally involve legal border crossings, visa fraud and travel into the United States on airplanes. Victim organizations say there are relatively few cases that involve forced kidnapping across the border. This might be one reason Britt regularly cites a case that happened long ago and did not involve crossing the border.
In other words, while the problem might be real at some level, building a wall or shutting down the border would have no effect on it.
Britt closed with a message for “my fellow moms”:
We see you, we hear you, and we stand with you.
But apparently we’re not going to do a damn thing for you. Because that’s not how Republicans see Congress: It’s a place to strike poses and make outrageous statements that you hope will go viral and get mentioned on Fox News. It’s not for passing legislation that might help Americans deal with real problems.
[1] “what freedom else” is typical of a number of small manglings in this speech, and demonstrates the kind of verbal mistakes Biden has been prone to his entire career. I guarantee you “what freedom else” never appeared on a speechwriter’s computer screen.
As someone who occasionally speaks in public from a prepared text, I recognize this type of mistake, because I make a lot of them during my rehearsals. (I’m a little better than Biden at getting words out, so I’ve usually ironed these glitches out before the public presentation.) Mistakes on this level are not evidence of some larger cognitive decline, as Biden’s critics would have you believe.
[2] Trump and his supporters like to forget 2020 happened at all. For example, Tim Scott bragged about Trump’s economic record by quoting 2019 unemployment statistics.
[3] “Envy of the world” is a phrase we’ll hear a lot during this campaign, because while US economic situation is not perfect, the problems our economy faces are global problems that America is handling better than just about any other country.
Every country’s economy tanked during the pandemic, and every government (including the US under Trump) spent massively so that people who couldn’t go to work wouldn’t starve, and businesses that had to close their doors temporarily would have the resources to reopen. When the vaccine did allow economies to reopen, prices rose everywhere, and every central bank raised interest rates to try to rein inflation in.
But the US is virtually alone in pulling off a “soft landing”: getting inflation down while continuing to create jobs. It’s a major accomplishment and Biden is right to take pride in it.
[4] This provoked exactly the kind of protests from Republicans that Biden was probably counting on, and allowed him to ad lib the way he did last year on Social Security and Medicare cuts.
We have two ways to go. Republicans can cut Social Security and give more tax breaks to the wealthy. I will — [shouts from the audience]
That’s the proposal. Oh, no? You guys don’t want another $2 trillion tax cut? I kind of thought that’s what your plan was. Well, that’s good to hear. You’re not going to cut another $2 trillion for the super-wealthy? That’s good to hear.
[5] This led to another back-and-forth with Republicans.
Oh, you don’t think so? Oh, you don’t like that bill — huh? — that conservatives got together and said was a good bill? I’ll be darned. That’s amazing.
One of the most satisfying clips from the speech was Senator James Lankford of Oklahoma, the lead Republican senator negotiating the bill, saying “That’s true” as Biden listed the bill’s virtues. To his credit, Lankford didn’t deny it afterward.
Trump’s decision to tank the border bill was a major blunder that gives Biden a way out of an issue that otherwise worked against him. Now he can say something like: “I tried to solve the problem, but my opponent had his Republican allies in Congress block me. They would rather have a talking point than any real progress.”
[6] The larger point is that while the undocumented (like every other segment of the population) do occasionally commit crimes, on the whole there is no discernible “migrant crime problem”. Cities with a large population of undocumented immigrants do not have more crime than other comparable cities.
With its ruling affirming the rights of “extrauterine children” and invoking “the wrath of a holy God”, the Alabama Supreme Court takes a giant step towards theocracy.
Given all the bad press Alabama has gotten this week for its supreme court’s ruling that frozen embryos are “extrauterine children” covered by the state’s Wrongful Death of a Minor Act, you might imagine that the media is just piling on. You might be thinking, “It’s probably not really that bad.” Maybe if you took the time to read the full 131-page decision, you’d understand and even respect where the justices were coming from, even if you still didn’t agree.
Let me shoot that generous notion down: I read the decision. It’s even worse than it looks in the news reports. I started reading newsworthy court opinions with the 2003 Massachusetts same-sex marriage decision, and since then I’ve easily read 100 or so. I’ve never seen one this flat-out insane or this scary in its implications.
It’s tempting to go off on a rant. But instead, let me back up and give you the context.
IVF. The reason anybody freezes embryos in the first place is for in vitro fertilization (IVF), a medical procedure that helps otherwise infertile couples have their own biological children rather than adopt. It’s been going on since 1978 and it’s popular: CNN estimates that about 2% of babies born in the United States are conceived through IVF. Chances are that you know someone who conceived or was conceived through IVF. (I know I do.)
Leaving out a bunch of details, it works like this: Ova are removed from a woman’s ovaries, and then they are fertilized in a laboratory with sperm from that woman’s chosen partner (or maybe a sperm bank). The cells start dividing, and after a few days they are ready to implant in a uterus (either the woman’s own or, if the whole point is to overcome some medical problem there, the uterus of some other willing woman). This is a hit-or-miss process that may require several attempts, so typically a number of ova are fertilized simultaneously, and the embryos not used are frozen in case they are needed later.
Many of the frozen embryos will never be implanted in a uterus, where they might develop into fetuses and eventually babies. Perhaps they are defective in some way. (For example, it’s possible to test the embryos for some heritable genetic issues the parents want to avoid passing on.) Or perhaps the woman succeeds in having all the children she wants before all the embryos are used. The remainder are usually destroyed in one way or another, though they can stay frozen more-or-less indefinitely (“several decade, if not longer” according to the court’s majority opinion).
Bad theology. So far, so good, but then IVF runs into a dogma invented by Catholic and/or Evangelical theologians: At the moment of conception, the fertilized egg becomes a full human being for all moral purposes. (As I’ve explained before, this notion is not just against common sense, it’s also ahistorical and non-Biblical. Among Protestants, virtually no one believed this until after abortion became a conservative political issue in the 1970s.) If this dogma is true, then destroying these clumps of cells means murdering human beings. So unless women can be convinced (or forced) to gestate the extra embryos (even the defective ones), the only moral choice is to grant them a peculiar sort of immortality in a freezer.
An unfortunate accident in Alabama. I’ll let Justice Jay Mitchell, who wrote the Alabama supreme court’s majority opinion, sum up the incident that started the recent case:
The plaintiffs’ IVF treatments led to the creation of several embryos, some of which were implanted and resulted in the births of healthy babies. The plaintiffs contracted to have their remaining embryos kept in the Center’s cryogenic nursery. … [I]n December 2020, a patient at the Hospital managed to wander into the Center’s fertility clinic through an unsecured doorway. The patient then entered the cryogenic nursery and removed several embryos. The subzero temperatures at which the embryos had been stored freeze-burned the patient’s hand, causing the patient to drop the embryos on the floor, killing them.
So there are obvious grounds for a lawsuit: The clinic should have kept the embryos safer and the wandering patient shouldn’t have mucked with them, with the result that something the plaintiffs valued was destroyed. But rather than (or in addition to) suing under the kinds of tort laws that would apply to accidentally destroyed property, they sued under the Wrongful Death of a Minor Act, a law that would apply if, say, someone had run over their six-year-old.
The trial court didn’t buy it.
In each of its judgments, the trial court explained its view that “[t]he cryopreserved, in vitro embryos involved in this case do not fit within the definition of a ‘person’ ” or ” ‘child,’ ” and it therefore held that their loss could not give rise to a wrongful-death claim.
But then the Alabama Supreme Court got involved.
Strange coinages. Conservatives love to make fun of the “politically correct” ways that liberals use words, saying things like “enslaved person” rather than “slave” or “pregnant person” rather than “pregnant woman”. Well, I invite them to read this decision.
You’ve already run into one of the strange coinages: The embryos were stored in a “cryogenic nursery” rather than a “freezer”. (I wonder whether the freezer technicians are listed as “cryogenic nurses”.) Worse, Justice Mitchell frames the case’s main issue like this:
whether the [Wrongful Death of a Minor] Act contains an unwritten exception to that rule for extrauterine children
That’s right: “extrauterine children”. (I bet you have never thought of yourself as a “uterine child”.) And perish the thought that the authors of the 1872 act, writing more than a century before the first IVF baby was born and only two decades after the first commercial ice-making machine, weren’t thinking about frozen embryos when they said “child”, or that we shouldn’t try to guess what their opinions would have been, if some science fiction author could have explained the concept to them. No: We can stretch the notion of “child” to include frozen embryos, and the 1872 law doesn’t explicitly tell us not to. So there you are.
The stretching of “child” happens in two steps. First to “unborn children”, which Mitchell explains was always included in the notion of a “child”.
the ordinary meaning of “child” includes children who have not yet been born.
He gives two arguments for this, neither of which is particularly convincing: Long before 1872, people said that a pregnant woman was “with child”, clearly meaning that her fetus was already a child. (Of course, they also said that she was “expecting” a child, indicating that the child exists in the future, not the present. Mitchell’s cherry-picking technique does not require him to explain this.) Mitchell then misconstrues Blackstone’s 17th-century classic Commentaries on the Laws of England, which Chief Justice Tom Parker’s concurring opinion quotes more precisely: life “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” With that larger context, Blackstone was plainly drawing a boundary at quickening, not conception.
But once you take as established law that the boundary of childhood is conception, then why should it matter whether the conception happened in a womb or in a test tube? Of course the law must protect “extrauterine children”. The law, he writes, “applies to all unborn children, regardless of their location”.
He goes on to fret over the possible unforeseen consequences of limiting the law’s protection to uterine children: What will happen in the future, when laboratories remove women from the gestation process completely?
one latent implication of the defendants’ position — though not one that the defendants seem to have anticipated — is that, under the defendants’ test, even a full-term infant or toddler conceived through IVF and gestated to term in an in vitro environment would not qualify as a “child” or “person,” … [and] then their lives would be unprotected by Alabama law.
God forbid the legislature should have to write a new law for this situation. And speaking of God …
The Chief Justice’s theological treatise. Bonkers as it is, Mitchell’s opinion sounds downright reasonable once you read the concurrence by Chief Justice Parker, a 23-page lesson in Christian theology that begins on page 26.
You see, the Alabama Constitution, which was rewritten in 2022, affirms “the sanctity of unborn life”. Parker feels compelled to interpret this “sanctity” as a uniquely Christian notion, stemming from “the creation of man ‘in the image of God.’ Genesis 1:27 (King James)”. He quotes at length from a 17th-century Protestant theological treatise on the significance of creation in God’s image, which he says accords with the opinions of Catholic saints Thomas Aquinas (13th century) and Augustine (5th century). He then says:
Man’s creation in God’s image is the basis of the general prohibition on the intentional taking of human life.
This would seem to imply that no culture outside the Judeo-Christian tradition cares about murder. Parker also gives attention to John Calvin’s writings on the subject before concluding:
In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Section 36.06 [of Alabama’s constitution] recognizes that this is true of unborn human life no less than it is of all other human life — that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.
No doubt you have heard about judges threatening some malefactor with jail or fines or injunctions, but when was the last time a judge invoked “the wrath of a holy God” against those who would “efface his glory”?
Effects. The immediate legal effect of the ruling is not that big: It sends the case back to the court that had dismissed it, with instructions to apply the Wrongful Death Act.
But fear of the ruling’s implications has thrown Alabama’s IVF facilities into chaos. At least three have suspended operation, worrying not just about the embryos in their own freezers, but also about the possibility that the ideas expressed in this civil case might seep over into criminal law. Vox quotes Stephen Stetson, the director of Planned Parenthood Alabama.
I can appreciate the desire of lawyers who are advising fertility clinics to be conservative. No one wants to be on the hook for any legal liability or risk of criminal prosecution if some district attorney gets the wrong idea.
And then there are the Alabama women who have invested a considerable amount of money, inconvenience, and hope for the future in IVF. They are just out of luck, it seems.
Possibly the Republican-controlled state government will try to help them. A state senator has announced his intention “to introduce legislation that would clarify that embryos are not viable unless they are implanted in a uterus”. Governor Ivey has endorsed this effort.
[Senator Tim] Melson, who is also a medical doctor, says his proposal would make clear that “a human egg that is fertilized in vitro shall be considered a potential life,” but should not be legally considered a human life until it is implanted in a uterus.”
In other words, the state would be saying that ensoulment-at-conception theology is wrong. I wonder how many legislators will be willing to do that, even given how popular IVF is across party lines. (Both Mike Pence and Democratic Senator Tammy Duckworth have children conceived via IVF.)
I also wonder if legislation would be enough. Chief Justice Parker based his opinion on the state constitution and the will of God, so a mere law probably wouldn’t move him. It’s hard to say what the other justices would do. The ruling had an 8-1 majority, but several of the concurrences read like dissents. They reject the majority opinion’s reasoning (sometimes for the very reasons I’ve given above), but reach the same conclusion by a different path.
Beyond Alabama. Arizona, Missouri, and Georgia have fetal personhood laws similar to Alabama’s, though Arizona’s is currently blocked by the courts. Similar laws have been proposed in 12 other states (though the laws are unlikely to pass in some of them, like Massachusetts and New York).
Any of those states could be the site of the next IVF case. Further, a number of birth control options are technically murder, if ensoulment happens at conception. An IUD, for example, primarily works by preventing conception, but it also can prevent a fertilized ovum from implanting in the uterus, effectively killing it.
Marching towards Gilead.Amanda Marcotte examines the deeper implications of the extremist faction that wants to ban IVF. On the surface, she says, their opposition to IVF seems puzzling.
A lot of people are understandably shocked to learn that the anti-abortion movement also hates IVF. After all, the movement claims to be all about motherhood. One would think the people who are always yammering on about how a woman’s greatest purpose is giving birth would celebrate those who endure IVF, which is both painful and expensive, just so they can have a baby.
But she sees an underlying motive:
It’s important to understand that what the Christian right really wants is not motherhood, per se, but a social order where women are second class citizens. They take a dim view of not just abortion and contraception, but all reproductive technologies that make it easier for women to exercise autonomy over their lives.
It also must bug them that many lesbians use IVF to conceive.
Michael Shermer, the publisher of Skeptic Magazine, reposted a Heritage Foundation post from May which proposes to “end recreational sex”. It includes a video in which a woman proposes to “restore consequentiality” to sex by ending birth control. Chris Rufo, the conservative theorist behind the Critical Race Theory panic, replied with
“Recreational sex” is a large part of the reason we have so many single-mother households, which drives poverty, crime, and dysfunction. The point of sex is to create children—this is natural, normal, and good.
So if you’re one of those couples that has been using sex to express your love for each other rather than to conceive children (a path my wife and I have been following for nearly 40 years), Chris Rufo thinks you’re doing it wrong.
It’s important not to paint this issue with too broad a brush: Most people who call themselves Republicans, and even most people who would tell a pollster they support Trump, don’t agree with this extreme anti-sex, anti-choice position. But in the Trump era, the most radical voices consistently prevail in the GOP. Reasonable moderates, to the extent that any still exist, have been consistently unwilling to stand up to ideologues on their right flank. Will they this time? That’s not a bet I’d want to cover.
This was a week where you couldn’t tell the players without a program. Important things were happening in multiple Trump trials at once — a phenomenon I think we’ll see more of in the months ahead. But before going into the details, I want to talk about the general phenomenon: Why does Donald Trump keep losing in court?
Why Trump keeps losing. Friday, New York Judge Arthur Engoron issued his decision in the New York civil fraud case against Donald Trump, his adult sons, several Trump Organization companies, and two major Trump Organization executives: a $355 million “disgorgement” penalty, plus interest.
This is a huge amount of money, and it is just the latest of a series of Trump losses in court: the two E. J. Carroll lawsuits for defamation and sexual assault, which resulted in $88 million in damages; the criminal tax-fraud case against the Trump Organization ($1.6 million from the company and jail time for ex-CFO Allen Weisselberg); the Trump University civil fraud suit (settled out of court for $25 million), the Trump Foundation lawsuit ($2 million and dissolution of the foundation), and 61 of the 62 suits Trump filed in his attempt to overturn his loss in the 2020 election. (The one he won affected a tiny number of votes and had no effect on the election’s outcome.)
Trump, of course, paints this as years of harassment by a corrupt legal system, but I learn a much simpler lesson: Bullshitters don’t do well in court. A talented bullshitter can succeed in politics and/or business, but judges don’t have to put up with bullshit, and most of them won’t.
When he’s been caught doing something wrong, Trump’s usual damage-control technique is to spin out several mutually inconsistent stories until he sees which one is catching on. (January 6 is a great example: At first, the rioters were antifa rather than his supporters. Then they were his supporters, but they were conducting a mostly peaceful protest. Or maybe it was a riot, but he didn’t incite it. And now we’ve reached the point where it was a riot and they were his supporters, but they are patriots being railroaded by the same corrupt legal system that is railroading him.) His supporters latch on to whichever explanation rings true to them, ignoring the fact the Trump himself may have moved on to a different story.
He tried something similar in the NY civil-fraud trial: He claimed his financial statements weren’t false. Or maybe they were false, but they had a disclaimer. Besides, accuracy was the accountants’ responsibility, not Trump’s. In real estate, everybody’s financial statements are false. And the bankers are sophisticated people who should have known not to believe Trump’s claims. Pick whichever answer appeals you.
Trump’s string of losses demonstrates that his tactic doesn’t work in court, where the legal process is designed to reach a single narrative of events. Shifting back and forth from one excuse to another will just annoy a judge, who will communicate that annoyance to a jury, if there is one.
Another thing that doesn’t work in court is restarting arguments you’ve already lost. Trump’s lawyers keep repeating defenses that Engoron had already ruled against. (Like: The loans were repaid, so there was no fraud. More about this below.) That kind of doggedness can pay off in politics, because the public easily forgets how some point was debunked. But in court it just pisses a judge off.
The judge also added interest to the penalty, bringing the total to around $450 million. He denied the state’s request to ban Trump permanently from doing business in New York, and instead banned him for only three years, with sons Eric and Don Jr. banned for two. Engoron also decided not to revoke the Trump Organization’s certification to do business in New York (part of his earlier summary judgment that an appeals court had put a stay on), which would have effectively dissolved the company, since it is incorporated in New York.
The decision is dull reading, because Engoron goes through the witnesses one-by-one, summarizing what each one said and why it was believable, unbelievable, or irrelevant. Then he goes through Trump’s fraudulently valued properties one-by-one and lays out the evidence of fraud. This is important material to record for Trump’s inevitable appeal (since the appellate court won’t hold its own trial), but it can be tiresome to plow through.
Here are a few simple things I gleaned from the decision:
First, the shape of the fraud: When The Trump Organization was looking for loans during the 2010s, Deutsche Bank’s Private Wealth Management Division was the only bank that wanted to do business with them. In a series of deals, it offered two loan possibilities: a loan secured only by the real estate collateral, or a loan secured by the collateral plus Trump’s personal guarantee. The second loan had a significantly lower interest rate, and it was based on assertions about Trump’s net worth and available cash. Trump was then obligated to give Deutsche Bank annual statements of financial condition (SFCs) verifying that his net worth and available cash were still above certain thresholds.
Those SFCs are the fraudulent business records, and they were off by a lot. One type of fraud was to value Trump’s properties “as if” rather than “as is”. So for example, Mar-a-Lago is worth a lot more if it can be sold as a private residence, but its deed restricts it to being a social club. (Trump got a lower real-estate tax rate by agreeing to that restriction.) The SFCs list the value as if that restriction could be made to go away. Similar things happen all over the Trump empire: One property is valued as if Trump had permission to build 2500 residences, when in fact he only had permission to build 500. And so on.
Second, where did the $355 million figure come from? Engoron didn’t just pull it out of a hat, and punitive damages play no role. It is a disgorgement of ill-gotten gains. Basically, it’s the interest Trump saved by making the fraudulent guarantees, plus the capital gain from the sale of the Old Post Office hotel near the White House (which Trump would not have been able to buy without the fraudulently obtained loan). Eric and Don Jr. each give up $4 million, because that was their share of the Old Post Office gain.
Third, the fact that the penalty is a disgorgement is why Trump’s there-is-no-victim rhetoric is off-base. The point here isn’t to compensate a victim, it’s to protect “the integrity of the marketplace” by punishing fraud. Engoron quotes a precedent:
Disgorgement is distinct from the remedy of restitution because it focuses on the gain to the wrongdoer as opposed to the loss to the victim . Thus, disgorgement aims to deter wrongdoing by preventing the wrongdoer from retaining ill-gotten gains from fraudulent conduct.
By asking for the personal guarantee and demanding evidence of the wealth to back it up, Deutsche Bank was trying to protect itself against a possible downturn in real estate in general and in Trump’s fortunes in particular. As it happens, those risks didn’t manifest and the loans were repaid. But Engoron observes: “The next group of lenders to receive bogus statements might not be so lucky.”
This kind of disgorgement happens all the time in insider-trading cases: The SEC makes the traders give up their gains, even if it’s impossible to figure out exactly who they cheated. And the purpose is the same: to protect the integrity of the market by preventing cheaters from prospering.
Finally, I want to turn around one standard conservative criticism, which you’ll hear whenever Biden tries to forgive college loan debt: “But what about the people who follow the rules, the ones who took their debts seriously and paid them off? What do you say to them?”
In this case, what about the people who have been denied loans (or had to pay a higher sub-prime interest rate) because they filled out their applications honestly? Or people who can’t afford to pay an accountant to lie for them, the way Trump can? What do Trump’s defenders say to them?
The hush-money criminal case will go to trial March 25. This is the red-headed stepchild of the Trump indictments, but it looks like it will be the first one to go to trial. Slate’s Robert Katzberg expresses what I think everybody is thinking:
While the conduct charged is, no doubt, criminal, it feels a bit like prosecuting John Gotti for shoplifting. The Bragg prosecution is also clearly the weakest of the four outstanding indictments from an evidentiary perspective, especially when compared to the D.C. slam-dunk. … In an ideal world the D.C. prosecution would be first, allowing the world to see just how close we came to having the 2020 election overturned and the frightening degree to which the former president is a threat to our democracy. However necessary and appropriate that would have been, it is not where we are now. The Bragg case, while hardly the most desirable opening act, at least gets the show on the road.
This case stems from Trump paying off porn star Stormy Daniels to keep their affair secret during the 2016 presidential campaign. But the sex itself isn’t a crime and the fact of the payoff isn’t what’s being prosecuted: It’s the lengths Trump went to in order to hide the payoff from voters in 2016. He had Michael Cohen pay Daniels. Then the Trump Organization created a false paper trail to reimburse Cohen, and recorded the reimbursement as a business expense when it was actually a campaign expense. So the charge is falsification of business records.
The Georgia case. The RICO case against Trump and his election-stealing co-conspirators is currently on hold while the judge decides whether DA Fani Willis should be disqualified.
The issue is her romantic entanglement with another prosecutor on the case, who she hired, and the claim that he kicked back some of the money she is paying him by spending it on her during their affair, which they both claim is now over. (They both claim she paid her own way by reimbursing him in cash, leaving no records — which is a sensible thing to do if you hope to keep the affair secret.)
The stakes in this are huge, because if Willis is disqualified, quite possibly nobody else picks the case up and Trump walks. Certainly the case won’t be tried before the election.
On the other hand, that outcome seems unlikely to a number of observers, for this reason: Willis’ affair is certainly salacious and embarrassing, and it may even be unethical enough to result in some kind of discipline against Willis outside this case. But disqualifying her from this case requires showing prejudice against these defendants. And nothing they’ve put forward so far proves that.
As a matter of both common sense and Georgia law, a prosecutor is disqualified from a case due to a “conflict of interest” only when the prosecutor’s conflicting loyalties could prejudice the defendant leading, for example, to an improper conviction. None of the factual allegations made in the Roman motion have a basis in law for the idea that such prejudice could exist here – as it might where a law enforcement agent is involved with a witness, or a defense lawyer with a judge. We might question Willis’s judgment in hiring Wade and the pair’s other alleged conduct, but under Georgia law that relationship and their alleged behavior do not impact her or his ability to continue on the case.
My social media is full of a point that may not be legally relevant, but packs a political punch:
So Clarence Thomas can accept hundreds of thousands in gifts but Fani Willis can’t go dutch on dinner?
Jack Smith and presidential immunity. The question of whether former presidents are immune from prosecution for anything they did in office is now with the Supreme Court. Both Judge Chutkan and the DC Court of Appeals have rejected Trump’s immunity claim, which appears to be far-fetched and intended as a delaying tactic.
Other than Trump and his lawyers, I haven’t heard anyone predict that the Supreme Court will reverse the lower courts’ rulings and stop Jack Smith’s January 6 case in its tracks. However, it remains to be seen to what extent Trump allies on the Court will cooperate with his strategy to delay the case past Election Day.
(As I’ve commented before, Trump’s delay strategy is essentially an admission of guilt. An innocent man who believed he was being prosecuted purely for political reasons would want the case to be tried as soon as possible, so that he could get the vindication of a jury’s not-guilty verdict. But Trump knows that a jury that sees the evidence will convict him, so his best hope is to get reelected and then instruct his attorney general to drop the case.)
The key documents have already been filed with the Court: Trump’s application for a stay that will continue delaying the trial, Jack Smith’s response, and Trump’s reply to Smith. The arguments Trump’s lawyers are making are the same ones the lower courts rejected, and amount to “No, they’re wrong.” (BTW: I love that this case is Trump v the United States.)
The Court has a number of options, which Joyce Vance outlines, ranging from refusing to hear the appeal and letting the case continue as soon as possible, to scheduling lengthy briefings and not ruling on the case soon enough for the trial to be heard before the election.
Disqualification. We’re still waiting for the Supreme Court to rule on whether the 14th Amendment’s disqualification clause applies to Trump (because of his role in the January 6 insurrection), and whether states (like Colorado) can enforce that disqualification from public office by refusing to list him on presidential ballots.
The judges sounded skeptical during the oral arguments, so it would be a shock if they ruled Trump ineligible. But it will be a challenge to square a Trump-is-eligible ruling with the conservative justices’ originalist philosophies. The Court works on its own clock, so a ruling could come tomorrow, at the end of the term in June, or any time in between.
The Hur Report. Thursday, Special Counsel Robert Hur released a 388-page document reporting on his investigation into classified documents President Biden returned to the government after they were found among his papers at the University of Delaware and in his home. The conclusion of that report is in its first line:
We conclude that no criminal charges are warranted in this matter. We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president.
In a report that followed Department of Justice traditions and guidelines, that would be the headline: We looked for evidence of prosecutable crimes and didn’t find any. For comparison, the special prosecutor tasked with investigating classified documents found in former Vice President Pence’s home also decided (last June) that no charges were warranted. The NBC News headline was “DOJ closes Pence classified documents investigation with no charges“.
The second paragraph of such an article would have quoted Hur outlining the difference between this case and former President Trump’s classified documents case:
It is not our role to assess the criminal charges pending against Mr. Trump, but several material distinctions between Mr. Trump’s case and Mr. Biden’s are clear. Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts.
Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it. In contrast, Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview. and in other ways cooperated with the investigation.
But the Hur report was covered very differently, because in addition to summarizing his investigation, Hur also gratuitously speculated on how Biden would defend himself at a trial.
In addition to this shortage of evidence, there are other innocent explanations for the documents that we cannot refute. When Mr. Biden told his ghostwriter he “just found all the classified stuff downstairs,” he could have been referring to something other than the Afghanistan documents, and our report discusses these possibilities in detail.
We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.
Throughout, the document casts inappropriate and unnecessary aspersions on Biden’s memory and mental processes.
Mr. Biden’s memory also appeared to have significant limitations-both at the time he spoke to [ghostwriter Mark] Zwonitzer in 2017, as evidenced by their recorded conversations, and today, as evidenced by his recorded interview with our office. Mr. Biden’s recorded conversations with Zwonitzer from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries.
Thursday night, MSNBC’s Chris Hayes commented on how needlessly editorialized this was: Painfully? Who was supposed to be in pain? Ordinary human difficulties — struggling to interpret handwritten notes from years ago, or speaking slowly when you are trying to get something exactly right — are cast in the light of disability. The report then continues:
In his interview with our office, Mr. Biden’s memory was worse. He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (“if it was 2013 – when did I stop being Vice President?”), and forgetting on the second day of the interview when his term began (“in 2009, am I still Vice President?”). He did not remember, even within several years, when his son Beau died.
This, again, paints something perfectly ordinary in a negative light: There’s no indication that Biden has really forgotten “when he was vice president” or “when his son Beau died”, just that he sometimes attaches the wrong year-numbers to these memories. This happens to me (and to Paul Krugman) all the time. A frequent exchange with my wife is “When did we move here? 2018? 2019?” And then we work it out because she was turning 65 and wanted to start Medicare in Massachusetts. Same thing with my father’s death: I know his birth year and that he lived to be 90; that’s the only way I remember what year he died. But I have not at all forgotten “when my father died”; I can tell you precisely where I was and what I was doing.
In general, I remember the years personal events happened only if I’ve had to list them on a resume. (Krugman gives the example of recalling the year his mother died: He figures it out by remembering when he left Princeton for CUNY.) Otherwise, I have to think about it. That’s been true all my life and has nothing to do with aging.
If you can’t identify with those examples because your memory works differently, let me try an analogy: It’s like the difference between forgetting the dates of the Civil War (1861-1865) and forgetting the Civil War. (“Like, didn’t a bunch of states secede once or something?”)
It’s hard to argue with Krugman’s conclusion that the report was written by somebody who knows that Republicans want to make a political issue out of Biden’s mental acuity and wants to help them do it. Hur’s legitimate conclusions as an investigator are of no use in this regard, so he contributes in other ways.
Contrast Hur’s behavior with Jack Smith’s. Smith has played it by the book: He has investigated alleged crimes, and when he has found sufficient evidence, he has presented that evidence in indictments. Does he know other embarrassing details about Donald Trump’s life? Quite possibly. But if they’re irrelevant to the crimes he’s indicting, he doesn’t talk about them.
For example, back in December there were reports in the press that Trump literally stinks “of armpits, ketchup, and butt”. Has Smith’s investigation turned up anything related to that? He hasn’t seen fit to tell us, because reeking is not an indictable crime.
There’s a reason the Justice Department has standards about this kind of thing. Criminal investigation is one of the most invasive things our Constitution allows the government to do. So unless the investigation turns up something actually criminal, investigators should remain circumspect about what they think, and certainly should not use the authority of their investigation to defame or denigrate people they are not prosecuting.
The Egypt/Mexico mistake. Biden was understandably angry with Hur’s report, and held a press conference to say so. Unfortunately, as he was walking out of the room, he took one more question about an unrelated subject: his efforts to negotiate a release of the hostages Hamas is holding. Responding off-the-cuff, he said this:
I’m of the view, as you know, that the conduct of the response in Gaza — in the Gaza Strip has been over the top. I think that — as you know, initially, the President of Mexico [Egypt], El-Sisi, did not want to open up the gate to allow humanitarian material to get in. I talked to him. I convinced him to open the gate.
I talked to Bibi to open the gate on the Israeli side. I’ve been pushing really hard — really hard to get humanitarian assistance into Gaza. There are a lot of innocent people who are starving, a lot of innocent people who are in trouble and dying, and it’s got to stop.
OK, I’m biased to like this statement, because Biden’s views on the Gaza War have shifted in the same direction as mine. (See what I wrote last week.) But there is that mistake: He said “Mexico” when he meant “Egypt”. (Notice: He got the name of Egypt’s president right. So he clearly knew what country he was talking about.)
People have tried to draw a lot of conclusions from this mistake, but again, I do stuff like that all the time. So does Trump. In this clip, for example, he says, “We’re going to defund our freedoms.” (Presumably he meant “defend”.) In this one, he recalls (falsely) what he did after the World Trade Center was attacked on seven-eleven. More recently, he said “Nikki Haley” when he meant “Nancy Pelosi”.
I think most people do stuff like this from time to time: You reach into your mental bag of words in a category, and you come out with the wrong one. (In Biden’s case, the category is “countries on the other side of some significant border”. In Trump’s it’s “women who get in my way.”) Speaker Mike Johnson made a comparable mistake on Meet the Press a week ago yesterday. “We passed the support for Iran many months ago.” (He meant Israel, another Middle Eastern country beginning with I.) Johnson is 52.
Aphasia vs. dementia. Obviously, this kind of mistake happens more often as people get older. I have a lot of experience with this phenomenon, because in his later years, my Dad developed a far worse case of aphasia than anything Biden or Trump have demonstrated. Eventually, it reached the point where he called every meal “lunch”.
But it’s important not to confuse aphasia (problems recalling words) with dementia (problems grasping the situation). For example, Dad saying “lunch” did not reflect any confusion about what time of day it was or when he had eaten last. “Lunch” was just the easiest meal-word to find. (On a road trip, we went to “lunch” first thing in the morning, before getting on the highway. Dad ordered breakfast.)
You might worry that dementia is a natural progression from aphasia, but that’s not how it works. There’s a relationship, but the causality runs in the other direction: Problems in your thinking will lead you to use inappropriate words. But in general, pulling the wrong word out of memory (or no word at all) doesn’t screw up your thinking. So Dad’s aphasia kept getting worse, but he knew who he was, where he was, what he was doing, and who I was all the way up to his last days. (I remember one extreme example: Dad wanted a tool for some home maintenance project he was doing. He couldn’t come up with the name of the tool, the store he wanted to go to, or the street it was on. So he told me to get in the car, and then gave instructions — turn left, turn right — taking us directly to the paint store. He got the tool, we drove home, and he continued his project.)
So I cringed when I heard Biden say “Mexico”, but only because I knew how people would react. His misstatement did not at all cause me to worry that he did not grasp the world situation, or that he would start using the powers of the presidency in some delusional way.
Trump, on the other hand, has lived in a delusional world for decades. In his world, he has always been right, people oppose him because of some inexplicable hatred unrelated to his behavior, he has a mystical “strength” that causes the world to warp around him, his personal charm changes the behavior of dictators, and his wealth comes from mastering “the art of the deal” rather than via a vast inheritance and a lifetime of fraud.
Biden will undoubtedly continue to say the wrong words now and then. But I can live with that, because I trust him (and not Trump) to stay rooted in the real world.
If things were worse than that, how would we know? There would be defectors from inside the Biden administration. Unlike Trump, Biden isn’t the focus of a personality cult. People who work with him may like Joe Biden, and they may feel a certain loyalty to him, but they are primarily Americans and Democrats rather than Biden-worshippers. If something were wrong with him that endangered the country and threatened the goals of the Democratic Party, at least a few insiders would come out and say so. Cabinet secretaries, speech writers, White House aides … they’d hate doing it, but at least a few of them would: “It’s worse than it looks,” they’d say. “We have to do something.”
But look around. That’s not happening. The people disparaging Biden’s competence are precisely the people who don’t work with him, the people who wouldn’t know. Even Republicans, like Kevin McCarthy, come out of their dealings with Biden saying that he’s sharper than you think.
What should Biden and the Democrats do? Immediately: nothing.
These last few days, pundits of all sorts have been trying to stampede Biden into resigning or Democrats into abandoning him. This is crazy: Biden has been a very good president and there’s no reason to think he won’t have an equally good second term, despite the unforgivable sin of saying “Mexico” when he meant “Egypt”.
On the flip side of that panic, it’s tempting to want to make some dramatic gesture to prove how sharp Biden is. But that’s likely to be counterproductive in the same way that Richard Nixon saying “I am not a crook” was counterproductive. “I don’t have dementia” is exactly the kind of thing somebody with dementia would say.
Immediately, Biden should let the wave of hysteria pass. Get on with governing. Give a good State of the Union address. Keep working on a truce in Gaza. An oval office message about something else entirely — the importance of not letting Ukraine fall to Russia, for example — would help.
After the dust settles a little, Biden should sit for more one-on-one interviews, like this one he did with John Harwood ten days before his interview the special counsel. When you watch this kind of exchange, you quickly realize that Biden has a mental dexterity Trump lacks: He can listen to a question, process it, and produce a thoughtful answer germane to what was asked. Asking Biden a question is like playing catch: You throw him a question, he fields it, and throws an answer back. But asking Trump a question is like bouncing a rubber ball off an irregular stone wall: It will ricochet quickly, but in a direction that doesn’t seem to have much to do with your throw.
And finally, Biden needs to laugh. This is tricky, but Ronald Reagan pulled it off. When a questioner raised the age issue during a debate with Walter Mondale in 1984, Reagan made a solemn pledge:
I will not make age an issue in this campaign. I am not going to exploit for political purposes my opponent’s youth and inexperience.
I don’t have a peace plan. I just want the destruction to stop.
One of the more intriguing stories in Genesis happens in chapter 18: God visits Abraham in human form, along with two companions. As he is about to leave, God lets Abraham in on a divine secret: He is about to destroy Sodom and Gomorrah. He tells his companions why he thinks Abraham needs to know about this:
Abraham will surely become a great and powerful nation, and all nations on earth will be blessed through him.For I have chosen him, so that he will direct his children and his household after him to keep the way of the Lord by doing what is right and just
Like many passages in the Bible, there are at least two ways to read this: Maybe Abraham needs to know how evil nations are punished, and to teach his children, so that the nation of his descendants will know better than to be like Sodom. [1] But the conversation develops in such a way as to allow a second interpretation. Abraham knows his nephew Lot lives in Sodom, and he worries that God will kill evil and good people indiscriminately. So he pushes back against God’s judgment.
Will you sweep away the righteous with the wicked? What if there are fifty righteous people in the city? Will you really sweep it away and not spare the place for the sake of the fifty righteous people in it? Far be it from you to do such a thing—to kill the righteous with the wicked, treating the righteous and the wicked alike. Far be it from you! Will not the Judge of all the earth do right?
Gods agrees that he should save Sodom for the sake of fifty. And then Abraham begins to bargain. What about 45 good people? Forty? Thirty? Twenty? Ten? Each time, God agrees. And then the text says only “When the Lord had finished speaking with Abraham, he left”, not telling us whether Abraham pushed no further or God cut the discussion short.
Again, there are at least two ways to read this: Maybe God already knows that there aren’t ten righteous people in Sodom, and he indulges Abraham because the concessions he grants are moot; he’s going to destroy Sodom one way or the other. Or maybe something else is happening. Maybe this conversation establishes the idea of acceptable and unacceptable levels of collateral damage. Maybe that’s the lesson that God is drawing out of Abraham, so that he can pass it down to the great and powerful nation of his descendants. [2]
I’ve been thinking about this a lot lately, as the world watches the city of Gaza be destroyed. [3]
Immediately after October 7, my sympathies were entirely with the Israelis. The coordinated attacks of that day, targeted at places of no military value, apparently aimed at killing and carrying off as many civilians as possible, could not be tolerated. The people who planned and carried out those attacks could not be allowed to sit in safety and plot another one. And Hamas is famous for using civilians as shields, so I accepted that an Israeli counterattack would kill some number of innocent Gazans.
But not any number of innocent Gazans.
As of January 20, this was the British Red Cross‘ assessment of the situation in Gaza:
Winter temperatures are putting the lives of 1.9 million displaced people at risk
80% of the population faces severe food insecurity
The death toll in Gaza currently stands at more than 23,210, and 330 in the West Bank
59,167 people have been injured in Gaza and 4,042 in the West Bank
Food and safe and adequate shelter are extremely scarce, with many families unable to eat a single meal a day and people setting up makeshift camps in the street.
Sanitation and public health conditions have seriously deteriorated, posing a high risk of disease outbreaks that could cause significant casualties. Heavy rain and flooding is affecting Gaza which adds to the risk of waterborne diseases.
The situation facing Gaza’s hospitals and those relying on their care is also dire. Hundreds of thousands of people in Gaza no longer have access to healthcare.
Nearly 85% of the total population of Gaza have been forced to leave their homes in precarious and unsafe conditions. Many of these people have been forced to move and seek new shelter several times.
[S]atellite data analysis obtained by the BBC shows the true extent of the destruction. The analysis suggests between 144,000 and 175,000 buildings across the whole Gaza Strip have been damaged or destroyed. That’s between 50% and 61% of Gaza’s buildings.
I don’t want to make claims beyond my knowledge and expertise, so let me admit my limitations: I don’t know what alternative responses to October 7 were considered or were even possible. I don’t know what negotiations have happened behind the scenes, or what possibilities for peace have been offered. I don’t know how much influence the Biden administration has, or how it has tried to use that influence.
I also don’t know precisely what the Israeli government intended or how well that matches what the Israeli public wants. I do know that some elements of the Netanyahu government have genocidal intent. Some others, I suspect, simply don’t care: They (understandably) want Hamas gone and want Israeli lives to be secure; the number of Gazans who must die or have their lives shattered to achieve that goal does not matter to them.
I just want to say this: What we have seen is already too much. Gazan lives do matter.
I contrast what’s going on in Gaza with smaller-scale hostage situations, thinking not just of the Israeli hostages, but of the Gazan civilians who are simply in the wrong place. Police typically do not charge into such situations as if the survival of the hostages were not their responsibility.
I still have no sympathy with Hamas, and I continue to condemn what they did in October. But are there fifty righteous people in Gaza? It seems like there must be.
[1] What exactly made Sodom so intolerable to God is widely misunderstood. When God’s two angels (presumably the two companions Abraham met) arrive in the city, the men of Sodom want to rape them. So it’s often thought that Sodom’s sin had something to do with homosexuality, i.e., sodomy. But Genesis doesn’t explicitly say that, and Ezekiel says something else entirely:
Now this was the sin of your sister Sodom: She and her daughters were arrogant, overfed and unconcerned; they did not help the poor and needy.
So if your political plan involves cracking down on LGBTQ folks while kicking children off food stamps, you might want to reconsider.
[2] Apparently there is some history to this interpretation. I first ran across it in Adam Levin’s novel The Instructions, about a boy from Chicago who may or may not become the Messiah. The boy’s training is full of such rabbinical discussions.
Of course, you can contest this interpretation by pointing to the conquest of Canaan described in the book of Joshua, in which God orders genocide.
So Joshua subdued the whole region, including the hill country, the Negev, the western foothills and the mountain slopes, together with all their kings. He left no survivors. He totally destroyed all who breathed, just as the Lord, the God of Israel, had commanded.
Conflicts like this are a major reason most modern scholars read the Bible as an amalgamation of separate sources rather than as a narrative from a single point of view.
[3] Gaza’s history also goes back to Biblical times, and perhaps further. It was the Philistine capital where Samson was taken, blinded, and held prisoner. Gaza is where he killed himself and numerous Philistines by pulling down the Temple of Dagon. The Aldous Huxley title Eyeless in Gaza is an allusion to Samson.
The Supreme Court’s attempt to scuttle the Chevron Doctrine is part of a much larger program.
Over the last few weeks, Court-watchers have been trying to sound the alarm about the prospect of scuttling what had (until recently) been a fairly arcane bit of legal interpretation: the Chevron Doctrine. Lawyers understand how important it is (the Court has applied it in over 100 cases in the last 40 years), but it’s tough to get the general public to pay attention, much less to be up in arms about its possible demise. But there actually are good reasons to be up in arms.
A fairly standard thing to do at this point would be to tell you what the Chevron Doctrine is and where it comes from. I’ll eventually get around to doing that — click the link if you really can’t wait — but I’d rather have you keep reading for a few more paragraphs before you bookmark this page with the idea of getting back to it when you have more time.
Blood money. So instead I’ll back up a few levels and start with the underlying problem: In a complex modern economy, there are countless ways for corporations to make money by killing people. They can kill their customers by selling products that will crash them into trucks or suck them out of airliners or cause heart attacks or give customers cancer or salmonella or some other disease. They can kill their employees with unsafe workplaces. They can kill their neighbors by pumping poisons into the air or water. As AI catches on, products may start killing people and we won’t even know why.
Sometimes corporations very consciously make the money-for-lives tradeoff, as the tobacco companies did for decades, and as the gun manufacturers are still doing. But sometimes they just don’t know, at least at first. They have a product, they make money off of it, customers seem happy with it, so why look any deeper than that? Diacetyl makes microwave popcorn taste more buttery — what’s not to like?
As individuals, we’re more or less helpless to protect ourselves. No one has the time or the expertise to analyze every single thing they use or come into contact with. That’s why we rely on government regulation, agencies like the FDA, EPA, FSIS, and others, to protect our lives. (Other agencies, like the SEC and the FDIC, protect our money from the kinds of scams that were endemic prior to the New Deal.)
Government regulators get their power from two sources: Congress and the President. Congress creates the agencies, defines their missions, and funds them each year. Meanwhile, the President appoints the people who set the policies to accomplish those missions. Ultimately, Congress and the President get their power from the voters.
But here’s the problem: The marketplace moves much faster than our political system. New products, new drugs, new food additives, new pollutants, and so forth appear every week. Imagine the dystopia we’d be living in if Congress, which strains to pass basic legislation to keep the government’s doors open, had to pass a new law to regulate each one.
Well, you may not have to imagine much longer, because the Supreme Court’s conservative majority seems hellbent on taking us there.
Delegated power. The way the regulatory system currently works is that Congress passes a few foundational laws that give the agencies abstract goals, and then lets the agencies hire experts who figure out how to pursue those goals.
A typical example is the Clean Air Act. The CAA was first passed in 1963 and then overhauled in 1970. It established air quality standards (NAAQS) for a few well-known pollutants like carbon monoxide, sulfur dioxide, and lead, but then it defined a general category of “hazardous air pollutants” (HAPs) made up of other gases and particulates that “threaten human health and welfare”. It tasked the EPA with making and maintaining a list of HAPs and creating emission regulations for controlling them.
Hold that in your mind for a minute: In passing the CAA, Congress banned or controlled substances that the members of Congress had never even heard of. That’s how the regulatory system works.
That’s a lot of delegated power, particularly power over corporations that don’t like being controlled. And yes, their wealth does give the companies opportunities to influence the system — say by bribing or otherwise inducing congresspeople to give them various exemptions, or by letting regulators know they can have cushy jobs after they leave government if they behave themselves — but it’s never enough.
What corporations would really like to do is monkey-wrench the regulatory system in general. And the best way to do that is to interrupt the flow of delegated power from Congress to the agencies: Make Congress pass a new law every time there’s some new thing to regulate. In a Congress where even saving lives can be a partisan issue, and where a bunch of small-state senators can lock things up with a filibuster, even the most obvious new regulations can be stalled indefinitely or watered down to nothing.
So the basic strategy for restoring corporations’ ability to profit by killing people has two pieces
Logjam Congress.
Prevent Congress from delegating its regulatory power to anybody else.
The most direct idea for keeping Congress from empowering regulatory agencies is known as the Nondelegation Principle: basically, that Congress can’t, as a matter of constitutional principle, delegate power that is inherently legislative. Some version of this idea is necessary, because otherwise Congress could authorize the president to be a dictator and then go home. But since 1928 delegation has been considered OK if Congress provided an “intelligible principle” for the agency to follow (like protecting human health and welfare from air pollutants).
But in a dissent in the Gundy case in 2019, Justice Gorsuch proposed a much stricter limit: Agencies can only “fill in the details” of laws, and can’t do something sweeping like, say, compile a list of dangerous pollutants to regulate. Fortunately, he didn’t get the majority to go along with him on that. But he’s still working on it, and the composition of the Court has changed since then. Expect to hear more about nondelegation sometime soon.
A second idea for reining in regulatory agencies is the Major Questions Doctrine, which the Court has created out of whole cloth over the last 25 years. Major Questions is a response to something that happens fairly often: Circumstances change in such a way that a provision in a law that seemed relatively minor at the time it was passed ends up granting an agency significant power. Major Questions allows the Court to say, “No, no, no. The law may say that, but Congress didn’t really mean it. If they’d intended to delegate such a large power, they’d have said so explicitly.”
So, for example, the Obama administration EPA decided that (due to the previously unforeseen problems of climate change), the Clean Air Act gave it the power to regulate carbon dioxide emissions from power plants. The Court nixed that in West Virginia v EPA. Carbon emissions, it said, are so central to the workings of our economy that (regardless of the text of the CAA) Congress would never have delegated that power without an explicit statement.
Now, there are four major objections to the Major Questions Doctrine:
The Constitution never mentions it.
The Court has never clearly defined what a “major question” is, so it has given itself permission to interfere (or not) whenever it feels like it.
The law says what it says, even if Congress didn’t foresee all the possible applications.
If Congress really didn’t intend to delegate that much power, it could pass a law to take power back. (But of course, that puts the logjam-Congress shoe on the other foot.)
One recent use of Major Questions was to torpedo OSHA’s rules about large employers vaccinating their workers against Covid. Yes, OSHA’s mission is to protect workers from unsafe working conditions, and yes, working next to an unvaccinated person during an epidemic is unsafe, but … Congress couldn’t really have intended that, could it?
One thing you’ll notice about Major Questions: It allows the Court to substitute its own judgment for both the plain reading of the law and for an agency’s interpretation of that law. And that brings us (finally) to the Chevron Doctrine.
Chevron. Back in the Reagan administration, all the ideological arrows pointed in the other direction: Reagan’s appointees were conservative, while judges tended to be liberal. In particular, the EPA was run by Justice Gorsuch’s mom, Anne Gorsuch.
Anne’s EPA had drastically limited its interpretation of what a “source” of pollution meant under the CAA. Previously, just about any change that introduced new pollution was considered a new source, and required EPA approval. But the new interpretation said that, say, an entire factory or power plant was the source of pollution, and could be substantially reconstructed without triggering EPA supervision.
The Natural Resources Defense Council sued to try to block something Chevron was building, but the Court ruled in Chevron’s favor by creating the Chevron Doctrine: When some part of a law is ambiguous, a court should defer to the interpretation of a regulating agency rather than impose its own interpretation of what Congress really meant. An agency couldn’t make up a ridiculous interpretation, but as long as its reading was plausible, the courts should yield to it. (An eye-glazingly detailed history of the Chevron case is in this interview between David Roberts and Dvid Doniger.)
But remember: the ideological arrows were pointing in the opposite direction from today, so Chevron was a conservative principle that was championed by conservative justices like Anton Scalia. The arguments he made were the same ones liberals are making today: Agencies have technical expertise that courts can’t compete with, and (because they ultimately get their power from Congress and the President), they’re closer to the voters than judges are. So Chevron is not just prudent, it’s democratic.
This kind of humility is sometimes called judicial restraint. For many many years, it was the hallmark of conservative jurisprudence: Activist liberal judges should restrain themselves, because they’re not as smart as they think they are, and because it’s undemocratic to remove issues from the political process.
But now conservatives have control of the courts, so humility is out the window. Apparently, judicial restraint was never actually a conservative principle, it was just a rhetorical device to keep liberal judges in check. Activist conservative judges, on the other hand, should have free rein to do whatever they want.
So Chevron has to go. The Court is using two fairly obscure cases (involving fees paid by the fishing industry to the National Marine Fisheries Service) to tee up an attack on Chevron. No one knows exactly what the ruling will say yet, but the questions the justices were posing during oral arguments point at a complete revision of Chevron that could make the Supreme Court also the Supreme Regulator; whether any given agency was interpreting its authorizing legislation properly would be for the Court to determine.
The practical implications of sinking Chevron could be enormous: Literally thousands of cases have been decided on that basis in the last 40 years, and any of them could come up for a rehearing. Plus, literally every regulation on the books will become a legal battleground, with the Supreme Court’s six conservative justices being the ultimate deciders.
In short, a committee made up of six foxes is about to take over the regulation of every chicken coop in the country.
Tim Alberta indicts the religion he grew up in, but ends on a hopeful note. How convincing is that?
In the news sources I follow, Tim Alberta and his new book The Kingdom, the Power, and the Glory: American Evangelicals in an age of extremism have been everywhere lately. As of yesterday, it was the #1 best seller in Amazon’s “Christian Church history” category. The book’s web page boosts it as a “New York Times Bestseller, one of Barack Obama’s Favorite Books of the Year, and an Air Mail best book of the year.” An excerpt — the book’s prologue, in which Alberta reminisces about his Evangelical-preacher father and describes how his father’s flock assailed Alberta for his politics when he returned to the megachurch his father founded for his father’s funeral — has appeared in The Atlantic. He’s been interviewed on numerous MSNBC shows, including The 11th Hour. Michelle Goldberg wrote a column about his book, though I can’t find any clue that she read all the way to the end.
So chances are you’ve heard about Alberta, and maybe you know the thesis of his book: He surveys how right-wing politics has taken over the Evangelical movement, which today is often more about Trump than about Jesus, and whose Promised Land is not Heaven, but an America re-dominated by Christian leaders (who are probably White, male, and Republican, and definitely straight). Christianity, whose “kingdom is not of this world“, has been corrupted by a very worldly American nationalism.
What is special about Alberta’s perspective is that he critiques Evangelicalism from the inside. The fundamental problem he sees in Christian Nationalism isn’t that it violates the Constitution or opposes democracy or goes down the rabbit holes of absurd conspiracy theories, but that it is a heresy. Worshiping America (or Trump) is a form of idolatry. Jesus, in Alberta’s view, would have us change the world by channeling God’s love, not by promoting an angry, fearful, hateful brand of politics. God is eternal, and He cares little about nations, which come and go. (Galatians 3:28 says “There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Christ Jesus.”)
Access. Alberta’s book demonstrates a level of access that I find hard to imagine. Some of the most famous — and most outrageous — characters in American Christianity sit down with him and share their unguarded (or barely guarded) thoughts.
Robert Jeffress (the Dallas megachurch pastor who was key in bringing Evangelicals to Trump in 2016 and in defending his worst excesses) discussed his post-1/6 doubts about how far he went to promote Trump. “I had that internal conversation with myself — and with God, too — about, you know, when do you cross the line? When does the mission get compromised?” Alberta pushed on that a little and Jeffress confessed, “I think it can be [compromised]. I think it even was, these last few years.” (Jeffress is back in the Trump fold now.)
Greg Locke, the Tennessee preacher whose church mushroomed when he defied public-health restrictions to stay open during the pandemic, and instead turned his church into a center of anti-vax, anti-liberal, and anti-government conspiracy theories, tells Alberta, “I’ve grown. … Are there times that it’s been perceived that I cared more about the kingdom of earth than the kingdom of heaven? Probably. And that was probably my fault. I probably shot myself in the foot and got a little too animated about things.” (Maybe he meant it.)
On election day 2022, Alberta had breakfast with the Christian Coalition founder Ralph Reed, who predicted a big night for Senate candidate Herschel Walker.
He reports numerous conversations with Russell Moore, a central character in the right/left struggles of the Southern Baptist Convention. And with Jerry Falwell Jr., who was pushed out as president of Liberty University under a cloud of scandal.
It goes on like that. List everybody you wish you could talk to about these issues, and Alberta talked to them. They appear to have taken his questions seriously rather than stiff-arming him as part of the liberal media. People who usually take a double-down, show-no-weakness attitude towards probing questions seem to have wanted Alberta to understand them and their points of view.
What point of view? Because we so seldom get our questions answered, people like me have a hard time piecing together how Evangelicals look at themselves and come to their (to me) bizarre-looking political positions. As best I can piece it together now, the logical order goes like this: Over the last 50 years or so, American culture has either de-emphasized or outright rejected many conservative Christian ideas about morality. So now abortion, homosexuality, interracial marriage, same-sex marriage, pre- and extra-marital sex, and even (in some communities) transsexuality are all OK. Evangelicals see this creep of standards as moving primarily against them, rather than in favor of previously oppressed groups like, say, gays. So they extrapolate forward to a society where they will be persecuted the way the early Christians were by Rome. When churches were closed during the pandemic — along with theaters, sporting events, and any other place where crowds typically assemble — they took it personally, as the first act of a liberal Deep State that is eager to shut them down.
This interpretation and this fear looks paranoid to me. (After all, I’m pretty liberal and I never run into anybody who is eager to shut down churches permanently and persecute their members. The suggestion just never comes up.) So I have no idea who in particular they should be afraid of. But it’s very real to them, which is why many of them have a we-are-facing-the-apocalypse mindset. Preachers and politicians have promoted this fear, preyed on it, and taken advantage of it. The result is a sense of desperation, a willingness to believe ridiculous conspiracy theories, and an eagerness approve some very un-Christ-like tactics.
That result looks to Alberta like a profound loss of faith in the message of Jesus, who said “Love your enemies and pray for those who persecute you, that you may be children of your Father in heaven.” Instead, Evangelicals find themselves looking for someone more badass than Jesus, which is what they like about Trump.
Structure. Alberta’s book is made up of three parts: The Kingdom is his tour of Evangelical churches, where he talks to the Trumpiest pastors he can find, as well as to pastors who are struggling not to lose their churches to this Christian Nationalist movement. One such church is Cornerstone Evangelical Presbyterian Church in Brighton, Michigan, which was founded by Alberta’s father and is where Tim grew up. In Chapter 1 we meet his father’s hand-picked successor, Chris Winans, who isn’t willing to endorse right-wing politics from the pulpit, and so is watching his membership plummet. But in Chapter 7 we meet Bill Bolin, whose Floodgate church in the same town is riding the right-wing wave — stolen election, vaccine horror stories, looming Christian persecution — to grow and prosper.
Part II, The Power, focuses on politicians and political operatives who are harnessing Christian Nationalism, people like the fake historian David Barton, Ralph Reed, and Charlie Kirk of Turning Point USA. Alberta attends a session of Michael Flynn’s ReAwaken America tour, which is like a tent revival for QAnon types. But he also talks to an apostate of the religion-meets-rightwing-politics movement: Cal Thomas, who anticipated much of what ultimately went wrong in his 1999 book Blinded By Might.
Part III, The Glory, is the hopeful part of the book, which I found unconvincing. He focuses on people who have survived the right-wing wave, including a return to Winans at Cornerstone, who over a period of years has rebuilt the church’s membership while keeping his message Christian rather than nationalist. Activists who want the Southern Baptist Convention to address its sex-abuse issue win a vote, and then beat back a right-wing counterrevolution. Jerry Falwell Jr. gets ousted at Liberty University, and is replaced by people who maybe maybe will start to take LU’s stated mission seriously. Stuff like that.
In the final chapter, one of the book’s sympathetic characters, LU Professor Nick Olson, delivers this optimistic vision of a revitalized Christian church:
I think the first step is reimagining the Christian worldview. And that means replacing our dominant metaphor — culture war — with something different. That’s been the running theme for evangelicals: we’re always embattled, always fighting back. But what if we laid down our defense mechanisms? What if we reframed our relationship to creation, to our neighbors, to our enemies, in ways that are more closely aligned to the Sermon on the Mount? What if we were willing to lay down our power and our status to love others, even if that comes at cost to ourselves?
Good luck with that, Nick. It’s a beautiful thought, but the currents still seem to me to be running in the other direction.
My response. In his hopeful Part III, I think Alberta underestimates how deep the structural problems in Christianity run, a case I made in a 2022 post “How did Christianity become so toxic?“.
In my experience, the style of motivated reasoning we see in the Trumpist movement (where, for example, Bill Clinton’s sexual excesses were disqualifying, but Donald Trump’s as-bad-or-worse actions are just part of his charm) began a long time ago. The willingness of Christians to deny facts, to seize on any useful misrepresentation, and to apply more favorable standards to people on their own side — I was running into this back in the 70s when fundamentalists argued against evolution, and probably it had been going on for decades before that.
Over time, anti-evolution became a template for denying anything conservative Christians didn’t want to believe: global warming, the effectiveness of vaccines, anything. The nonsense put out by the anti-abortion movement — that six-week-old fetuses have a heartbeat, 15-week fetuses feel pain, abortion can cause breast cancer, and so on — is unkillable, because conservative Christians live in a world where facts and science don’t matter. If some argument advances your position, then it must be true. Standing against this kind of nonsense means that you have turned against your faith.
Any serious attempt to clean this all up and teach sound reasoning will cost Evangelicals things they value far more than the truth. They’ll have to admit that the Earth has been around far longer than a few thousand years, that the diversity of human languages must have started much earlier than the Tower of Babel, that there never was a worldwide flood, and so on. They’ll have to account for obvious contradictions in the Bible. (The clearest, I think, is between the two genealogies of Jesus in Matthew and Luke. It’s not just a matter of the names being different; they don’t have the same number of generations between David and Jesus.)
They won’t have to give up on the teachings of Jesus, but they’ll be left with a faith far more complicated than “that old time religion” they want to believe in.
Above all else, Evangelicals believe the things they want to believe. So it’s not going to happen — which means that even if the Trumpist heresy ultimately fails, there will soon be another one, because the tools to build one are so widely distributed and easy to use.
And then there’s the propensity to invent paranoid conspiracy theories. This is baked into the theology at a very deep level: There is a Devil, who represents ultimate evil and has human minions to work his will.
When rational people confront a conspiracy theory, the unraveling usually begins with one question: Who would do all this and why? But Evangelical theology provides a ready-made answer: The Devil and his minions would do this because they’re evil. The diverse pieces of the conspiracy may have no apparent contact with each other, but they share inspiration from a being not of this world. If in addition you allow them occasional acts of supernatural power, then there’s no conspiracy you can’t rationalize.
The paranoid part comes from the fact that Devil’s primary goal is to destroy the One True Church and persecute its followers. You may belong to the biggest, richest, most powerful religion on the planet, and your pastor may meet regularly with the President of the United States, but it doesn’t matter. Some powerful entity is trying to persecute you, and you will never be safe from him.
This is not to say that all Evangelicals are necessarily paranoid and captured by false narratives that they cannot examine rationally. But the DNA of their faith makes them vulnerable to paranoia and false narratives. If they understood that fact, they could guard against those traps and call each other back when they fall down those rabbit holes. But the vulnerability that their faith builds into their thinking processes is the very first thing they are driven to deny.
POSTSCRIPT
After reading the comments, I feel like I should post some general remarks about my attitude toward religion.
I am not, in general, against religion. I belong to a church myself, albeit a Unitarian Universalist church, which some people would say is not really a religion. (I disagree.)
There are obvious social advantages in belonging to a church: In our atomized society, we usually only meet people in specific roles, and it’s hard to form the kind of relationships where the whole of my life is involved in the whole of somebody else’s life. In a church, you not only meet a person, you may also meet the person’s spouse, kids, possibly parents, and some of their friends. Deeper conversations about what we’re each trying to do with our lives and what’s stopping us from doing it — they don’t violate our roles, the way they might in another setting.
But beyond the social, a weekly church service is a way to regularly remind myself, and for a community of people to remind each other, that we want to be better than this. Overall American culture places such importance on money, status, fame, career success, and so on. It can be hard to remember that life should be about more than that.
At its best, religion can posit what a better world looks like: a place where everyone is treated with respect, where people care about each other too much to let them fall through society’s cracks, where we aspire to find truth and beauty, and where everyone has a chance to become their best self. It’s valuable to know that this vision is not just some crazy idea I dreamed up, but that a community of people shares it.
So far I haven’t said anything about God, because traditional notions of God don’t play a big role in my thinking. I sometimes describe myself as a “functional atheist”. If you have a vision of God that is meaningful for you and helps you be a better person, I won’t try to talk you out of it. I may even use your God-language in our conversations, if it helps get an idea across. But “this is what God wants me to do” usually doesn’t come up when I’m trying to make decisions in my own life.
That said, I have an appreciation of even theistic religion. If a religious community has its vision of a better world right (or even close to right), the idea that God wants this for us can be powerful. If a religion motivates its believers to do the hard work of improving the world, I’m not eager to change their minds.
Now, obviously, a lot of religion isn’t like that. Communities of people can get together each week to justify being their worst selves, or to share a vision of a world where large parts of humanity are made to suffer. I’m not defending that. I just don’t think that religion necessarily has to turn out that way.
Back in 2004, before The Weekly Sift existed, I wrote a piece on DailyKos called “Terrorist Strategy 101: a quiz“. Laid out in a Q&A format, the purpose of that piece was to get people thinking differently about terrorism and anti-terrorist strategy. Its main point was that if you are a pro-X violent extremist, your primary obstacle is not the popularity of the radical anti-X position.
Quite the opposite, in fact. If you’re a violent extremist, the main obstacle to your success is the apathetic middle. Most people just want to get on with their lives, and if you give them half a chance, they’ll work out some compromise that makes you irrelevant. Your first priority, then, is to radicalize the center. “Invert the bell curve” was the way I put it. Rather than most people being the middle, you need most people to be at the extremes.
Strangely enough, your supposed enemies, the anti-X violent extremists, are in exactly the same position. So the best way things could work out for both of you is a series of tit-for-tat atrocities that produce too much collateral damage for the public to ignore. If the attacks and counter-attacks go on long enough, the center becomes untenable and the bell curve inverts. “The anti-X extremists are monsters who only understand force,” you say. “We won’t be safe until we kill them all, regardless of the innocent people who get in the way.”
And of course, after you end up killing a bunch of those innocent people, the anti-X extremists get to say the same thing about you.
History is full of examples. In Weimar Germany, you had to be a Communist because only they were tough enough to stop the Nazis. Or you had to be a Nazi, because only they were tough enough to stop the Communists. (Social Democrats? Give me a break. What are those wimps going to do?) Around the time TS101 was written, President Bush was justifying torture because he had to prevent another 9-11, and Al Qaeda was recruiting based on what Bush’s people were doing in Abu Ghraib and Guantanamo.
Israel/Palestine wasn’t the main focus of that article, but it did come up.
That’s why extremists come in pairs: Caesar and Pompey, the Nazis and the Communists, Sharon and Arafat, Bush and Bin Laden. Each side needs a demonic opposite in order to galvanize its supporters.
Naive observers frequently decry the apparent counter-productivity of extremist attacks. Don’t the leaders of Hamas understand that every suicide bombing makes the Israelis that much more determined not to give the Palestinians a state? Don’t they realize that the Israeli government will strike back even harder, and inflict even more suffering on the Palestinian people? Of course they do; they’re not idiots. The Israeli response is exactly what they’re counting on. More airstrikes, more repression, more poverty — fewer opportunities for normal life to get in the way of the Great Struggle.
And that brings us to the October 7 attacks. Even a casual observer had to realize that the attacks didn’t make a lot of military sense. The Israeli army was barely touched, but Hamas went after a music festival, a few kibbutzes, and some other convenient villages. They didn’t capture key generals or government officials, but instead they killed a bunch of random Israelis and took a number of ordinary folks as hostages. The Israeli military had overwhelming superiority before the attacks, and it had overwhelming superiority after.
The attack was on another level entirely, and corresponds to terrorism in its most literal sense. The point was to evoke many Israelis’ worst nightmare: the fear that they can never be safe, and that they can’t protect their loved ones. Taking Prime Minister Netanyahu’s daughter wouldn’t have served that purpose nearly so well as grabbing the children of people no one had ever heard of. You may not be special, but they aren’t either. What makes your children different?
Everyone knew that Israel could and probably would retaliate with overwhelming force. And that was the point. Over the last few years, the Arab world had been starting to forget about the Palestinians. Leaders like Saudi Arabia’s MBS were beginning to see Israel less as the Great Boogeyman and more as a potential trade partner and/or ally against Iran. More and more Arab leaders were starting to see the Palestinian problem as a nuisance, something to be contained rather than solved. So Palestinians needed the Great Jewish Boogeyman to reappear on the world stage.
Now, I’m not the only person who understands this strategy. The Israeli government has some pretty smart people in it, so they must have grasped what was happening. NYT columnist Thomas Friedman (whom I seldom agree with) raised the perfect question on October 10:
What do my worst enemies want me to do — and how can I do just the opposite?
Pretty clearly, Hamas wanted Israel to do more or less what it has done: charge into Gaza and kill a bunch of innocent people (in addition to a bunch of really horrible Hamas terrorists). AP reports:
Israel’s campaign in Gaza has killed more than 22,400 people, more than two-thirds of them women and children, according to the Health Ministry in the Hamas-run territory. The ministry’s count does not differentiate between civilians and combatants. … Much of northern Gaza, which troops invaded two months ago, has been flattened beyond recognition. … Some 85% of Gaza’s 2.3 million people have been driven from their homes and squeezed into smaller slivers of the territory. Israel’s siege of the territory has caused a humanitarian crisis, with a quarter of the population starving because not enough supplies are entering, according to the U.N. At the same time, airstrikes and shelling across Gaza continue to destroy houses, burying families taking shelter inside.
Take that, MBS! How are your negotiations with Israel going now? And you Palestinian or Israeli moderates, who still hope for peace and a two-state solution — have you persuaded anybody lately?
Now, it’s easy to be judgmental about this, and to a certain extent we should be. But we also need to appreciate just how hard Friedman’s advice is to follow. If gunmen had invaded your home, killed your spouse and carried off your children, and if you had the power to destroy everything in your path as you tried to get the children back, how restrained would you be? How open would you be to “reasonable” advice?
What needed to happen after 10-7 was some delicate combination of sticks and carrots whose restraint probably would have infuriated a big chunk of the Israeli public. Yes, Hamas can no longer be allowed to govern Gaza, and those holding Israeli hostages need to be tracked down. But Palestinians also have to be offered some kind of hope for a revitalized peace process. Otherwise, their choice is between being slowly strangled by ever-expanding Israeli settlements, and going out in a blaze of glory. The choice to become a terrorist is usually made in late adolescence, when a blaze of glory can be very appealing.
Hamas in Gaza is three things: You have Hamas, the government, that was basically governing Gaza until October 7th. You have Hamas, the military wing, which is roughly thirty or forty thousand gunmen. And then you have Hamas as a political organization, which some politicians refer to as ideology. I think getting rid of the first—and saying, “Hamas will never govern Gaza again”—would have been a measurable and achievable goal. But the Israeli government instead went about it holistically, saying, “We will eliminate anything that has to do with Hamas or stands for Hamas.” It forgot that a political organization like Hamas has public support because Hamas stands up when Israelis apply collective punishment and discriminate against an entire population. By going against the entire Palestinian population, both in the West Bank and Gaza, they pushed all Palestinians to one side.
Now, why would Israel’s government do that? For a mixture of reasons, I imagine: Some leaders are probably as possessed by rage as anybody else; they’ve been hurt and they want to hurt somebody back. Some cynically recognize public anger as a force they can channel to raise their political power (and in Netanyahu’s case, stay out of jail). And some constitute the Israeli mirror-image of Hamas. (Remember, violent extremists come in pairs.) Just as Hamas wants to banish Jews “from the river to the sea”, they want to ethnically cleanse Palestinians from the same region.
They’re not going to do that by making peace. They need to keep the pot stirring until the bell curve completely collapses and a majority of Israelis see ethnic cleansing as the only answer. Two of them, Israel’s finance minister Bezalel Smotrich and national defense minister Itamar Ben Gvir, more-or-less said that recently.
each suggested the war in Gaza could result in the resettlement of the Palestinian people.
Smotrich told reporters Monday that the solution to the war was “to encourage the voluntary migration of Gaza’s residents to countries that will agree to take in the refugees,” The Times of Israel reported.
Ben Gvir echoed similar sentiments, telling reporters Monday that the war offers an “opportunity to concentrate on encouraging the migration of the residents of Gaza,” according to the outlet.
“We cannot withdraw from any territory we are in in the Gaza Strip. Not only do I not rule out Jewish settlement there, I believe it is also an important thing,” Ben Gvir said.
A US State Department spokesman commented:
We have been told repeatedly and consistently by the Government of Israel, including by the Prime Minister, that such statements do not reflect the policy of the Israeli government.
Maybe so. But nonetheless members of the cabinet are making such statements in public. So we know those ideas are being discussed within the government. Palestinians know it too. And that makes the job of Hamas recruiters so, so much easier.
The Weekly Sift 