Category Archives: Articles

Courts are still in session

July 10, 2023 – 11:00 am

The Supreme Court’s term ended last week.
But there’s still a lot of legal news to discuss.

When the final flurry of Supreme Court decisions came out late last week, you might have expected the legal world to go quiet for a while. Instead, this week

  • A Trump-appointed judge took a long list of conservative conspiracy theories seriously, and issued an injunction banning large chunks of the executive branch from talking to social media companies. So if somebody puts on a lab coat and makes a YouTube claiming that the whooping cough vaccine turns kids into werewolves, the CDC has to sit on its hands.
  • WaPo’s Ruth Marcus called attention to a ruling Federal District Court Judge Carlton Reeves of Mississippi made the previous week — a devastating attack on Clarence Thomas’ pro-gun ruling last year in Bruen. In a legal judo move, Reeves applied Bruen as written, ruling in favor of a convicted felon who claims the 1938 federal law barring him from owning guns is unconstitutional. Along the way, Reeves made it clear that he knows how ridiculous his ruling is, but he has to follow the Supreme Court’s lead.
  • An appeals court overturned an injunction blocking Tennessee’s ban on gender-affirming care for minors. The law went into effect immediately.

Let’s take the three in one-by-one.

Opening the disinformation floodgates. On July 4, a date clearly chosen for its symbolic significance rather than because his court was open, US District Judge Terry Doughty of Louisiana, issued a 155-page memorandum justifying his injunction ordering large chunks of the Biden administration — the White House, State Department, FBI, CDC, et al — to have no contact with social media companies concerning disinformation.

The ruling makes dull reading, because it is mostly a rehash of claims made by the plaintiffs (the states of Louisiana and Missouri and several individuals) about “censorship” by the Biden administration. The judge appears not to have fact-checked at all, and most of the “violations” take the following form:

  • Somebody posted a provably false claim on social media, containing dangerous misinformation about Covid or vaccines in general, or perhaps falsely attacking election officials in ways likely to provoke violence against them.
  • Somebody in the government noticed, flagged the post for the platform the claim was posted on, and pointed out that the post violated the company’s own policies.
  • The company took the post down, and may have sanctioned the poster’s account in some way.

In the examples given, the posters are almost all conservatives, for two simple reasons: The plaintiffs chose them that way, and conservatives post a lot more dangerous disinformation than liberals do.

This collection of examples has been spun into a conspiracy theory about the Biden administration’s sinister plot to silence conservative voices on the internet. The judge swallows this theory hook, line, and sinker, and responds accordingly.

The upshot of the injunction (if higher courts let it stand) is that if some video claims that vaccines could turn your child trans, the CDC just has to watch it go viral. Similarly, if a Russian troll farm starts a rumor among Black voters that they can vote over the internet, or that their mail-in ballots are fake and won’t be counted, the Cybersecurity and Infrastructure Security Agency (CISA) can’t do anything to stop the spread.

Given that I can’t recommend reading the judge’s memo itself, the best summary I’ve found is by Mike Masnick at TechDirt. What I like best about his account is that he gives the Devil his due: A few of the issues the judge raises are actually issues and should get public attention.

In particular, there is an issue with government pressuring private companies to do things that would be illegal for the government to do on its own. One form such pressure can take is threatening the companies with changes in the regulations that govern those companies.

There were some examples in the lawsuit that did seem likely to cross the line, including having officials in the White House complaining about certain tweets and even saying “wondering if we can get moving on the process of having it removed ASAP.” That’s definitely inappropriate. Most of the worst emails seemed to come from one guy, Rob Flaherty, the former “Director of Digital Strategy,”

However, most of the examples in the ruling are “made up fantasyland stuff”. And none were remotely as bad Ron DeSantis punishing Disney for speaking out against his Don’t Say Gay law, or Donald Trump threatening Amazon in order to pressure the Bezos-owned Washington Post to give him more favorable coverage. (Those examples are mine, not Masnick’s.)

Doughty seems incredibly willing to include perfectly reasonable conversations about how to respond to actually problematic content as “censorship” and “coercion,” despite there being little evidence of either in many cases … In doing so, Doughty often fails to distinguish perfectly reasonable speech by government actors that is not about suppressing speech, but rather debunking or countering false information — which is traditional counterspeech.

Masnick highlights the example of Dr. Fauci countering misinformation in the anti-lockdown Great Barrington Declaration, which Doughty frames as government censorship. Similarly, the influence of the CDC on social media companies is not an example of government coercion.

I mean, the conversation about the CDC is just bizarre. Whatever you think of the CDC, the details show that social media companies chose to rely on the CDC to try to understand what was accurate and what was not regarding Covid and Covid vaccines. That’s because a ton of information was flying back and forth and lots of it was inaccurate. As social media companies were hoping for a way to understand what was legit and what was not, it’s reasonable to ask an entity like the CDC what it thought.

Finally, he comes to the injunction itself, which has the kind of contradictory vagueness that characterizes so many conservative efforts (like anti-critical-race-theory laws). The injunction includes reasonable-sounding exceptions allowing communication about “criminal activity” or “national security threats” or “threats that threaten the public safety or security of the United States” and a few other things. However, most of the examples the judge casts as violations actually fall into one of his exceptional areas.

It seems abundantly clear that nearly all of the conversations were about legitimate information sharing, but nearly all of it is interpreted by the plaintiffs and the judge to be nefarious censorship. As such, the risk for anyone engaged in activities on the “not prohibited” list is that this judge will interpret them to be on the prohibited list.

So like Florida teachers, Biden-administration officials have no way to know what is legal and what isn’t. And so the injunction will have a chilling effect well beyond its text’s actually meaning.

Protesting Bruen and originalism. Here’s Ruth Marcus’ summary of Judge Reeves’ ruling:

Lower-court judges are bound to follow the law as decreed by the Supreme Court. They aren’t bound to like it. And so, lost amid the end-of-term flurry at the high court, came another remarkable ruling by U.S. District Judge Carlton W. Reeves of Mississippi.

Reeves declared that the court’s interpretation of the Second Amendment compels the unfortunate conclusion that laws prohibiting felons from having guns violate the Second Amendment. He took a swipe at the conservative justices’ zealous protection of gun rights even as they diminish other constitutional guarantees. And, for good measure, he trashed originalism, now “the dominant mode of constitutional interpretation” of the Supreme Court’s conservative majority.

Reeves explained what forced his hand in making a ruling he clearly finds ridiculous:

Firearm restrictions are now presumptively unlawful unless the government can “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” New York State Rifle & Pistol Ass’n, Inc. v. Bruen

In the case before him, a convicted felon caught with firearms was arguing that a 1938 law permanently banning felons from owning firearms violates his Second Amendment rights.

Reeves accepts the accuracy of the government’s claim that 120 post-Bruen federal court decisions have applied the law without noting such a violation. But …

In none of those cases did the government submit an expert report from a historian justifying felon disarmament. In none of those cases did the court possess an amicus brief from a historian. And in none of those cases did the court itself appoint an independent expert to help sift through the historical record.

Of course, Reeves has not done so either, but that’s OK, because neither did the Supreme Court in its gun-rights cases. Both Scalia in Heller and Thomas in Bruen relied instead on “law office history” that was “selected to “fit the needs of people looking for ammunition in their causes”. He summarizes the problem:

The federal felon‐in‐possession ban was enacted in 1938, not 1791 or 1868—the years the Second and Fourteenth Amendments were ratified. The government’s brief in this case does not identify a “well‐established and representative historical analogue” from either era supporting the categorical disarmament of tens of millions of Americans who seek to keep firearms in their home for self‐defense.

So “the government failed to meet its burden” in claiming that the law is constitutional.

Reeves’ ruling is worth bookmarking, because in contains an excellent history of the shifting interpretations of the Second Amendment. (Some years ago, I explained this difference of opinion by claiming that the Amendment doesn’t have any real meaning any more, so judges forced to interpret it have to make something up.)

But what’s really striking is Reeves’ closing section, which raises a question more people should be asking: Why doesn’t the Supreme Court defend all constitutional rights as zealously as it defends Second-Amendment rights?

In breathing new life into the Second Amendment, though, the Court has unintentionally revealed how it has suffocated other fundamental Constitutional rights. Americans are waiting for Heller and Bruen’s reasoning to reach the rest of the Constitution.

He starts with one obvious example: The Sixth Amendment guarantees all defendants a “speedy trial”. According to the historical record, what did the Founders consider “speedy”? Certainly not five years, which the Court endorsed in Barker v Wingo.

And then there are voting rights, which the Court has found to be “fundamental”, but it has erected much higher barriers to claiming that the government has violated your voting rights than it has set for violations of gun rights.

Maybe the Supreme Court is correct that in this country, to “secure the Blessings of Liberty to ourselves and our Posterity,” the government should have the burden of justifying itself when it deprives people of their constitutional rights. Perhaps the Court is also correct that constitutional rights should be defined expansively. The Court just isn’t consistent about it.

We have one Constitution. All of it is law. It has been enforced today as best as this Judge can discern the Bruen Court’s holding and reasoning. And, one hopes, a future Supreme Court will not rest until it honors the rest of the Constitution as zealously as it now interprets the Second Amendment.

Gender-affirming care. Fourteen states have passed laws banning gender-affirming care for minors. While the science justifying such treatments is far from settled, the majority of current medical opinion goes the other way. Also, by putting its own judgment above that of both doctors and parents, these red states expose the hollowness of the “parents rights” rhetoric they embrace in other contexts.

District court judges in Arkansas, Alabama, Florida, Indiana, Kentucky, and Tennessee have issued injunctions blocking these laws from taking effect. But Saturday was the first time an appellate court weighed in: A panel of Sixth Circuit judges ruled 2-1 to overturn the Tennessee injunction and let the law take effect. The Sixth Circuit also includes Kentucky, but this ruling does not directly effect Kentucky.

The ruling remains preliminary, as the 6th Circuit court plans to issue a full ruling by Sept. 30 after hearing arguments for a full appeal of the ban. In a filing Saturday, the court indicated it would decide the pending Kentucky case alongside Tennessee’s and set an accelerated schedule for briefing on those cases. However the schedule runs into next month and the next regularly scheduled argument session for the 6th Circuit after those deadlines is not until October.

Unless the other appellate courts follow the Sixth Circuit’s example, the issue is likely headed to the Supreme Court.

By weeklysift | Tagged | Comments (4)

The Court Unleashed

July 3, 2023 – 10:50 am

You may or may not care about affirmative action, LGBTQ rights, or student debt.
But this week’s Supreme Court rulings should disturb you anyway.

Until this week, the final week of its annual term, the Supreme Court seemed to be backing away from the rogue behavior of last year, in which it had repeatedly ignored precedent, invented fanciful readings of history, and generally found excuses to go wherever its right-wing ideology might lead.

Recall that last year, the Court didn’t merely eliminate abortion rights, its logic in Dobbs rejected the doctrine of substantive due process, potentially setting up the elimination of all rights that rely on that doctrine: same-sex marriage, access to birth control, the right of consenting adults to choose their own expressions of sexuality, and many others. In Bruen, it not only threw out a century-old New York State gun control law, it cast doubt on all gun-control laws that are not “consistent with the Nation’s historical tradition of firearm regulation” as Justice Thomas interprets that history. The direct impact of Carson might have been small — a religious school in Maine will get a small amount of state money — but the decision blew a huge hole in the wall between Church and State. Who can say what rude beast will slouch through that hole in the future?

Until this week, the Court seemed to be charting a more moderate course this year. Perhaps, some speculated, it had been stung by the backlash to last year’s rulings. (Dobbs in particular became a major issue in the 2022 midterms, and probably prevented Republicans from regaining control of the Senate. Supreme Court justices are supposed to be above caring about such partisan outcomes, but Chief Justice Roberts clearly does care.) Or perhaps the conservative majority was sensitive to the damage the Court’s reputation has suffered from the exposure of the blatant (and unpunished) corruption of Justices Thomas and Alito.

Whatever the reason, the Court had backed away endorsing the extreme independent state legislature theory, which would allow state legislatures to ignore the constitutions that formed them and reject the outcome of elections. It’s ridiculous that the case made it this far and that three justices (Thomas, Alito, and Gorsuch) endorsed such a frontal attack on democracy, but at least that effort was defeated. In addition, the Court rejected a red-state challenge to Biden’s immigration policy, supported Native American rights, and refused to destroy what remains of the Voting Rights Act.

Maybe, it seemed, this Court wasn’t as bad as we had thought.

I will give myself credit for remaining suspicious. Last week I wrote:

My guess is that Roberts has manipulated the calendar so that the Court’s most controversial decisions will come last. The cases decided recently have been divided between liberal and conservative wins, building up Roberts’ “centrist” credibility.

And so it was. In the term’s final week, the Court burned that centrist credibility. It ended affirmative action in college admissions (and blew away the justification for any form of affirmative action), shot down the Biden administration’s student-loan forgiveness program, and inserted an enormous loophole into all anti-discrimination laws.

Unlike last year’s Dobbs decision, though, none of these cases strikes a live wire of American politics. The direct victims of these decisions — Black students hoping to get into a good college (or go to college at all), young people drowning under student debt, and LGBTQ people wanting not to be second-class citizens — are probably not going to swing the 2024 elections the way that previously Republican suburban women swung the 2022 elections by staying home or supporting Democrats. Blacks, the young, and LGBTQ voters are already Democratic constituencies that partisan Republicans (like John Roberts) probably don’t mind pissing off.

So while it’s tempting to dive into the details of each case, point out the dubious logic the majority employs, and quote extensively from the ringing dissents by Justices Sotomayor, Jackson, and Kagan, I think that approach misses the larger story and would probably make many readers’ eyes glaze over. But looking at these three rulings as a whole, and setting them in the context of last year’s decisions, reveals a larger pattern that should disturb everyone: This Court is increasingly untethering itself from all traditional restraints on judicial power.

What limits the Supreme Court? A quick reading of the Constitution might leave you with a modest view of the powers of the Court. The Constitution establishes Congress in Article I, the presidency in Article II, and the judiciary in Article III, giving a hint that the Founders saw it as the least important and least powerful of the three branches of government. While the powers of Congress and the President are spelled out at length, Article III is much shorter, and about half of that space is taken up guaranteeing trial by jury and defining treason.

However, the Constitution left one important power unassigned: Congress writes the laws and the President enforces them, but who says what the law is? When statutes seem to contradict each other or the Constitution, who sorts things out?

In 1803, the Supreme Court claimed that power for itself, as Alexander Hamilton assumed it would in Federalist 78.

The unique property of judicial review is that this power is virtually unchecked by the other branches or by the People. If Congress can muster a supermajority, it can remove justices by impeachment, or it can start the constitutional amendment process. But otherwise, there’s not much anyone can do about the Court’s ruling that some act is unconstitutional. The Court is literally supreme; there is no further appeal.

And in some situations that’s obviously a good thing. Like me, you may think the Court got Bush v Gore wrong. But even I have to admit that somebody has to have the last word on a disputed election. Otherwise we’ll end up fighting in the streets.

In the absence of the usual checks and balances, the Court is restrained by a number of its own traditions:

  • precedent. The doctrine of stare decisis (literally, “let the decision stand”) requires that in the absence of a clear error, courts are obliged to view each new case through the lens of past decisions. The interpretation of the laws should not change from case to case or judge to judge.
  • standing. The Court cannot insert itself into every issue on which its majority has an opinion. The Court has to wait until someone brings it a case, and the party bringing the case can’t just be a convenient busybody; the case must be brought by someone who has a direct interest in its outcome.
  • rules of interpretation. The Court’s rulings cannot be based purely on its own opinions and intuitions. Rulings have to be tied to specific laws, and the way legal terms and phrases are interpreted is also subject to stare decisis.
  • respect for lower courts. In the absence of clear error, the Court should respect the findings of lower courts. In particular, when lower courts have held extensive hearings on the facts of a case, the Court should not ignore those findings and collect its own facts.

What we’ve seen these last two years, and saw particularly this last week, is an increasing disregard of these constraints. Even Americans who don’t care about this week’s cases (or agree with their outcomes) should find that disturbing. Without these constraints, the Supreme Court comes to resemble the Supreme Leader of Iran — an unelected and unaccountable authority with lifetime tenure that has the power to weigh in wherever it chooses.

Standing. Two of this week’s major cases had standing issues that made them almost laughable. The Court had no business hearing either one.

In the student-loan-forgiveness case, the HEROES Act of 2003 gives the Secretary of Education the power to “waive or modify” the terms of student loans for borrowers affected by a national emergency. The Biden administration proposed to use this law and the declared emergency of the Covid pandemic to forgive up to $20,000 of loans for borrowers making less that $150K a year.

If you don’t owe student loans yourself, or you make more than $150K, you may not care about this policy. You may even think it’s a bad idea; many people do. But how did this issue make it to the Supreme Court? Because the Biden administration was sued by the Republican attorneys general of six states.

But wait: Why are the states anything more than busybodies? They don’t make the loans or collect the payments. What injury do they suffer if the federal government forgives student loans? (And notably, none of the six — or any other state — sued when the Trump administration used the same law and the same emergency to suspend loan repayments in 2020. Their interest is not to redress some injury they’ve suffered, but to thwart the Biden administration.)

In his majority opinion, Chief Justice Roberts accepts a ridiculous argument that Justice Kagan completely demolishes in her dissent: One of the six states, Missouri, had created an independent public corporation, the Missouri Higher Education Loan Authority (MOHELA), to administer student loans. MOHELA contracts with the Department of Education to service loans, and its fees might decrease by $44 million next year if the loan forgiveness goes through. So MOHELA potentially suffers an injury and has standing to sue.

However, as Justice Kagan points out, Missouri is not MOHELA. Missouri created MOHELA to be financially independent, and gave MOHELA its own power to sue, which MOHELA has chosen not to do. MOHELA has not even submitted an amicus brief; it has shown no interest in this case whatsoever.

Is there a person in America who thinks Missouri is here because it is worried about MOHELA’s loss of loan-servicing fees? I would like to meet him. Missouri is here because it thinks the Secretary’s loan cancellation plan makes for terrible, inequitable, wasteful policy. And so too for Arkansas, Iowa, Kansas, Nebraska, and South Carolina. And maybe all of them are right. But that question is not what this Court sits to decide.

In short, the State of Missouri and its conservative attorney general are convenient busybodies that the Court used to insert itself into a public-policy debate that was none of its business. (The justification of its decision was also specious, but we’ll get to that later.)

The challenge to Colorado’s anti-discrimination law was even flimsier: A graphic designer in Colorado (Lorie Smith) has a one-woman corporation (303 Creative) that creates websites for products and events. She wants to start offering wedding-announcement websites, but claims that her “Christian” beliefs will not allow her to work with same-sex couples. This religion-based bigotry, she fears, will put her in violation of Colorado’s anti-discrimination law, so she is seeking an injunction to prevent Colorado from enforcing the law against her.

Picture the situation: Smith currently has no wedding-website-design business, and we don’t know that she ever will. That prospective business has no clients yet, and no same-sex couples are seeking to become its clients. So she has not rejected any same-sex clients, and the State of Colorado has had no occasion to cite her with any violation.

So what’s this case about?

For comparison, it’s as if the Scopes Monkey Trial had taken place after John Scopes merely thought about teaching evolution, or Plessy v Ferguson had gone to the Supreme Court without Homer Plessy ever trying to board the whites-only train car. Maybe Jane Roe could have challenged Texas’ abortion laws as soon as she and her husband started thinking about having sex.

You might also wonder how such a small operator gets such a weak lawsuit all the way to the Supreme Court. (Could you do that if you were imagining starting a business?) It’s simple: Smith’s suit was taken up by the Alliance Defending “Freedom”, which is part of the network of right-wing legal organizations clustered around Leonard Leo, the matchmaker who introduced Justices Thomas and Alito to their billionaire sugar daddies, and spent millions of dark money on ads to block the appointment of Merrick Garland to the Court while pushing for the approval of Justices Gorsuch, Kavanaugh, and Barrett.

From ADF’s Christian-nationalist point of view, the vaporous nature of the case is in fact an advantage. If Smith had actually violated the anti-discrimination law, some same-sex couple would be her victims. They might appear on TV shows and garner sympathy from the general public, which overwhelmingly disapproves of bigotry and discrimination. But instead, ADF can cast Smith as a victim of the state, albeit in a purely theoretical sense.

And since the case has no actual facts, the Court’s majority can frame its hypothetical facts however it wants.

In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.

Kagan’s dissent disputes that characterization, but who can say? Colorado has not taken any real-world action at all, so whatever it might be “seeking” in some future timeline is open to any conjecture.

In this reality, though, Smith has suffered no injury and has no standing to sue anybody. But none of that matters, because this Court will rule on whatever issues it wants, whether anyone has brought it a legitimate case or not.

Precedent. Other than its direct effect on the lives of millions of American women, including endangering the lives of a not-inconsiderable number of them, the most striking thing about last year’s Dobbs decision was that nothing of significance in the external world had changed since the last time the Court had reviewed abortion rights. But the Court had new justices, so there was a new outcome.

That’s exactly what stare decisis is supposed to prevent.

But OK, you could imagine that was a one-off: Maybe Roe was just an unusually poorly decided case that needed to be reversed. It happens. As Justice Kavanaugh reminded us during the oral arguments in Dobbs, some of the Court’s proudest decisions are reversals of mistakes, like when Brown reversed Plessy’s separate-but-equal ruling.

But the longer we watch this Court, the more obvious it becomes that precedent has lost its power. When precedents can be used to support a desired conclusion, (like Justice Harlan’s reference to a “colorblind constitution”) they are quoted with great respect, though not always in proper context. (Harlan was objecting to race-based rules that maintain the power of the dominant caste, not ones that undermine that power.) But inconvenient precedents are just mistakes to be rectified.

In the affirmative action case, for example, little of legal significance has changed since the Grutter decision of 2003.

In a majority opinion joined by four other justices, Justice Sandra Day O’Connor held that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”

But the composition of the Court has changed since 2003, so O’Connor’s conclusion no longer holds. The benefits of a diverse student body are the same as they were 20 years ago — if anything, they are becoming more significant as the US becomes less white and the world economy more globalized — but today those benefits are, in Chief Justice Roberts’ words “not sufficiently coherent for purposes of strict scrutiny”. Roberts instead constructs a Catch-22: If the needed amount of diversity can be quantified, then it is a quota, which is illegal. But if it can’t, then the concept is too incoherent to constitute a compelling interest.

Roberts won’t say it, but Justice Thomas will:

The Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled.

Respect for lower courts. The affirmative action decision is a daunting read: 237 pages long. One reason it has to be so long is that Roberts’ majority opinion ignores the inconvenient factual findings of the district court, which were upheld by the appellate court. Instead, he pulls facts from the plaintiff’s (SFFA’s) filings and other sympathetic sources, which the dissents then need to refute by compiling their own facts. Sotomayor’s dissent cites examples like this one:

The Court ignores these careful [district court] findings and concludes that Harvard engages in racial balancing because its “focus on numbers is obvious.” Because SFFA failed to offer an expert and to prove its claim below, the majority is forced to reconstruct the record and conduct its own factual analysis. It thus relies on a single chart from SFFA’s brief that truncates relevant data in the record. That chart cannot displace the careful factfinding by the District Court, which the First Circuit upheld on appeal under clear error review.

Roberts never explains why the district court’s findings are unreliable. He just doesn’t like them, so he doesn’t mention them.

Rules of interpretation. The rhetoric of conservative legal scholars is all about strictly constructing the exact text of the laws. Conservative Supreme Court justices often refer to their interpretative technique as “textualism” or “originalism” — the notion that phrases in the laws and the Constitution should be interpreted as they would have been commonly understood at the time the words were written.

You might expect that this responsibility to read the text closely would limit the power of judges to insert their own views into the law, but as practiced by the current justices, it does the exact opposite. Understanding how words were commonly understood at some point in the past is a job for historians, and the justices are not historians. Nor do they typically respect the consensus of the people who are historians.

Instead, we are treated to excursions into history that — voila! — always reach the desired result. If you’ve ever delved deeply into history yourself, you should understand how unlikely this is. History, researched honestly, frequently jars your preconceived notions. But the conservative justices are never jarred off their favored course.

Two of last year’s cases model how this works: Justice Alito justified his Dobbs decision with examples going back to the Middle Ages (because of course we should be guided by medieval views of women’s rights). But when Justice Thomas (writing for Alito as well as himself) overturned a New York gun-control law in Bruen, gun-control history from the 1600s was too early to matter and Wild West gun control too late. Inconvenient laws and rulings from the era Thomas focused on were “outliers” or “clearly erroneous”. And so Thomas also found historical backing for his interpretations.

This week’s student-loan decision presented an example of another “doctrine” that the Court has invented out of whole cloth to increase its own power: the major questions doctrine. The major questions doctrine is violated whenever an executive agency makes a ruling that seems to the Court to be too big for the provision in the law it cites. Congress, the justices decide, couldn’t have intended to put so much power into such a small package.

In other words, major-questions is a way for the Court to second-guess both executive agencies and the text of the laws.

In the student-loan case (which, as I noted above, the Court had no business considering at all), Congress passed the HEROES Act in 2003 to give the Secretary of Education special powers over student loans during a national emergency. It was a sequel to laws passed in 1991 and 2002 that responded to specific emergencies (the Gulf War and 9-11).

Self-evidently, it is the nature of emergencies to be unforeseen, and bigger emergencies will require bigger responses. Congress surely knew this in 2003.

The Covid pandemic was an emergency affecting the entire country, and it justified trillions of dollars in relief spending. But Chief Justice Roberts applies the major-questions doctrine to Covid-related debt cancellation and finds that it is too big. Congress could not have intended to delegate that much power.

He bases this conclusion on nothing in the law itself. Congress could have put a cap on emergency responses or limited them in some other way, but it didn’t.

As Justice Kagan points out in her dissent, Congress may have been unwise to delegate so much power, and the Biden administration’s attempt to use that power could also turn out to be unwise. Voters might have come to that conclusion and disciplined the politicians responsible in future elections.

But voters won’t have to make that judgment, because the Court — based on nothing — has inserted itself into the debate and made that judgment for them.

Conclusion. In short, the text of the law matters — unless it can be explained away with historical hocus-pocus, or unless the Court’s retrospective mind-reading reveals that Congress could not have intended some particular use of the law it wrote. Precedent matters if it can be construed to support what the conservative majority wants to do, but otherwise it is a mistake to be fixed. Standing doesn’t matter at all any more; if the Court wants to weigh in on a topic, it will find a way to do so. And facts? Well, the best cases are ones that have no facts, because they provide the most open fields for judgment.

These are the principles the current Court operates under. If that doesn’t bother you, you haven’t been paying attention. Or maybe you envy the way Iran has structured its government.

By weeklysift | Tagged | Comments (44)

Pardon?

June 26, 2023 – 10:05 am

I can imagine showing Trump mercy, but only if he changes his behavior,
which I don’t expect him to do.

It shouldn’t be surprising that many Republican presidential candidates are promising (or at least considering) a pardon for Donald Trump if the electorate entrusts them with that power. Some Republicans go so far as to suggest that Biden should pardon Trump in order to “heal the country”. But what is surprising, at least to me, is that apparently a significant fraction of Democrats agree. [1]

So let’s think this through. There are two standards you might use to judge a pardon: justice and the national interest. They don’t necessarily point in the same direction: You might imagine that even if Trump is guilty as sin, the United States will be a better place in the long run if he gets off. (Or you might not.)

Justice. To me, it’s pretty clear that sending Trump to jail would be just. He has broken numerous laws over his lifetime, and has manipulated the justice system to escape accountability again and again.

He was proven guilty in both of his impeachment trials, even though Republican senators decided to stand by him for political reasons. When he defrauded the Trump University students, he got off by writing a check. He has cheated on his taxes for decades. The Trump Foundation was a scam, but again he escaped with merely financial consequences. The Trump Organization was criminally convicted in a tax-avoidance scheme, but not Trump personally. A jury ruled that he sexually abused E. Jean Carroll, but that’s a civil lawsuit. The New York Attorney General has made a sweeping case of “numerous acts of fraud and misrepresentations” over 20 years, but again, it’s a financial lawsuit that won’t send him to jail.

He’s currently facing two criminal indictments: 34 counts of falsifying business records in New York state court (arising out of the Stormy Daniels hush-money payment that Michael Cohen went to jail for), and the 37-count federal indictment relating to the Mar-a-Lago documents.

In both of the criminal cases, it’s worth observing that almost none of Trump’s defenders are challenging the fact of his guilt: The 34 business records in the New York case really are false, he really did violate the Espionage Act, and he really did obstruct the government’s attempt to recover the documents he stole.

Defenses of Trump are either technical (the New York charges should be misdemeanors and the statute of limitations should have run out) or diversionary (what about Hillary Clinton? what about Hunter Biden? isn’t this all political?).

But the bottom line is that he did the things he’s been charged with. Everyone knows it.

And then we get to the indictments still pending, which most likely will cover even worse behavior: Later this summer, Georgia is likely to indict him for his fake-elector scheme and his attempt to pressure Georgia officials into cheating for him in the 2020 election. And Jack Smith is still investigating the larger conspiracy the fake-elector scheme was part of: Trump lost the 2020 election, knew he had lost, but schemed to stay in power through illegal means, including inciting violence against Congress. [2]

That was undeniably the worst breech of faith any American president has ever committed. If he had succeeded, all future elections would be meaningless, and the American experiment in democracy would be over.

So does he deserve to be in jail? Does he deserve to stay there until he dies?

Yes. Unquestionably.

The Trump distortion field. That said, we need to be careful not to get caught in the Trump distortion field. In Trump’s mind, everything is about him. There is no right or wrong, just for-him or against-him. No one has principles, they just love him or hate him. [3]

What we saw for four years was the nation being run in his personal interest. The Covid pandemic, for example, was bad for his image, and a lockdown would slow the economy and hurt his reelection chances. So he told the country Covid was no big deal. It was just another flu; there weren’t that many cases; it would all clear up on its own; and so on.

The result was that the US government was slow to react, and probably hundreds of thousands of Americans died unnecessarily. (If we had the same death rate as Canada, about 700,000 dead Americans would still be alive. An opinion piece in Scientific American labeled Trump’s response to the pandemic “incompetent and malevolent”. ) But so what? Minimizing the pandemic was good for Trump, and what else matters?

If you stand too close to Trump, or let your eyes fix on him for too long, you can get caught in the same mindset: All that matters is what happens to him. If you like him, he should be president again, probably forever. If you don’t, he should die in jail.

In order to think about the national interest, you need to consciously wrench your mind out of that distortion field: It’s not all about him. It’s about us. It’s about the country. What’s best for the United States of America?

I just said I think he deserves to die in jail. But personally, I don’t need to see that happen. He did terrible things to this country and set terrible forces in motion. But our top priority should be to stop those forces. What happens to him is secondary.

The national interest. So what’s the national-interest case for Biden to pardon Trump? In the Washington Post, American Enterprise Institute fellows Marc Thiessen and Danielle Pletka claim that such a pardon would “heal the country”, “spare the country the ordeal of a trial”, and make Biden “a true statesman”.

The central problem, they claim, is that the public is not convinced of Trump’s guilt or that the law is being applied fairly to him.

Selective prosecution is not a defense in a court of law, but the court of public opinion is another matter. Millions will see Trump’s prosecution as illegitimate, and any conviction as unjust. That will further erode public confidence in our judicial system and the principle of equal justice under law.

In addition, prosecuting a political rival sets a bad precedent. It “opens Pandora’s box”.

A Trump trial would be one of the most divisive events in the history of our republic. It would set a new precedent — and create enormous pressure on the next Republican president to go after President Biden, his family and other Democrats.

Let’s take these points one by one.

Pandora’s box. Biden did not open this box and nothing he can do will shut it.

If using the government’s power to investigate the president’s political opponents is “Pandora’s box”, it was opened when Trump tried to extort Ukraine into investigating Joe and Hunter Biden, which was the subject of his first impeachment. Or maybe it was already open when Michael Flynn encouraged a chant of “Lock her up!” at the 2016 Republican convention.

If Trump becomes president again, does anyone really believe he won’t abuse his power in the same ways he did last time? Will Biden’s pardon fill him with gratitude? Will he slap his forehead and say, “Oh, now I get it. I’m supposed to use my power in the country’s interest!”?

Of course not. Whether he is pardoned or not, if he has a second term President Trump will seek revenge on everyone who has crossed him. Someone like Jeffrey Clark will be his attorney general, and then we’ll learn what a weaponized Justice Department really looks like.

If some other MAGA-friendly Republican is elected, we can expect him or her to abuse power in whatever ways present themselves, independent of what Biden does now. [4] The MAGA base will expect no less.

The second problem with the Pandora’s-box point is that it ignores the difference between guilt and innocence. Remember: Trump is guilty of the things he’s been charged with. That matters.

If Biden is actually committing crimes — as Trump did and does and will do in the future — then by all means the next administration should prosecute him. But if he isn’t, then he shouldn’t be prosecuted.

Is that really so hard to understand?

Apparently it is, because we’re already seeing House Republicans abuse their impeachment power. Trump was impeached twice because he committed impeachable offenses. MAGA Republicans are now seeking to impeach Biden because … well, it’s tit-for-tat. They have nothing on him, but they want revenge for Trump’s impeachments. [5]

Public opinion. Back when I was in high school, one of my friends was paranoid. He was sure the rest of us were talking behind his back and making plans we didn’t tell him about. Almost anything could set him off and derail what would otherwise be a fun event. So avoiding any appearance of conspiracy became an important part of any plan.

In short, his paranoia caused us to talk behind his back and work out strategies for handling him. In retrospect, that probably wasn’t the best response.

It’s not the best response here either.

The idea that Trump is a victim of selective prosecution, and that the charges against him are unjust and illegitimate — those notions didn’t arise spontaneously. They’ve been carefully cultivated by the right-wing media and by Trump himself. [6]

If the Biden administration gives in to that point of view by reading the polls and letting Trump walk, then it winds up doing precisely what Trump is accusing it of doing: selectively enforcing the law to satisfy political considerations.

In the long run, the best way to maintain the appearance of justice is to act justly. It’s not a perfect solution — people can still lie about you or view you through the lens of paranoia — but at least you can defend yourself with integrity.

The ordeal of a trial. For the moment, let’s grant the assumption that Trump’s multiple trials will be national ordeals, and may even result in riots, shootings, bomb threats, and other political violence from the same kind of people who have been violent in his name in the past.

How should the nation avoid that trauma? Thiessen and Pletka put the onus on Biden: He should preempt a federal trial by pardoning Trump. (However, there’s not much Biden can do about the New York or potential Georgia prosecutions.)

But Steve Benen points out that there’s another way to avoid a trial: Trump could plead guilty. In the wake of the Hunter Biden plea, it would be hard for the government not to offer him a pretty sweet deal. Maybe he gets a year or two of house arrest at Mar-a-Lago, where he can continue to host parties and work on his golf game.

And I could be OK with that. As I said above: He may deserve to die in jail, but I don’t need to see it happen. I could accept compromising on justice if it accomplishes something for the nation.

And what would a Trump plea deal acquire for the nation? Resolution.

The two realities. Political polarization is indeed a serious national problem. But it arises out of a deeper problem: Trump’s supporters have created their own reality, which they work hard to maintain.

In MAGA reality (which Rachel Maddow has dubbed “Earth-2“, following a trope from the DC superhero universe), Trump has done nothing wrong, but is being persecuted by the Deep State, which is afraid that he will “drain the swamp” if he returns to power. This is all nonsense, but it is very persistent nonsense that can justify any level of political shenanigans, including violence.

The problem with a Thiessen/Pletka unconditional pardon is that it does nothing to resolve the gap between Earth-1 and Earth-2. They admit as much: “Trump wouldn’t have to admit he did anything wrong.”

Quite the opposite, in fact. It’s pretty easy to predict how Trump would crow: His immense popularity and the weakness of the government’s case had forced Biden to back down. On Earth-2, compromise is a sign of weakness, and that’s how they’d frame it: Trump is strong; Biden is weak.

Rather than depolarize the situation, a pardon would ramp up pressure to also release the other “political prisoners” — those convicted of January 6 offenses. After all, Biden would have admitted his prosecution of Trump was all political. So weren’t the prosecutions of Trump’s supporters political too?

An unconditional pardon would encourage a larger political trend on the Right: the belief that laws should not apply to them. For example, look at Texas Governor Greg Abbott’s support for pardoning convicted murderer Daniel Perry. Perry murdered a man protesting police brutality in Austin; the stand-your-ground argument Abbott favors was offered by Perry’s defense and rejected by the jury.

But Perry is a right-winger who killed a left-winger, so let him go. Ditto for Kyle Rittenhouse, who didn’t just get off — he’s become a hero because he killed a couple leftists. Go team!

This is how the Weimar Republic fell; it gradually lost the will to defend itself against right-wing violence. The Beer Hall Putsch of 1923 had no chance of overthrowing the government. Much like January 6, it was an almost comical collection of errors and exaggerated expectations. For his leading role in the putsch, an obscure and funny-looking politician named Adolf Hitler was found guilty of treason. He was leniently sentenced to a mere five years in prison, and then let go after nine months, which he had spent writing Mein Kampf.

As we all remember, he and his followers were so grateful for the government’s mercy that they never caused a problem again.

What should happen. The virtue of a Trump plea deal is that the case reaches resolution: Trump admits he committed crimes. To that extent at least, Earth-2 rejoins Earth-1, where the rest of us live.

But suppose he doesn’t want to do that — which I’m sure he doesn’t. [7] Well, then, there’s still something to be resolved, and that’s what trials are for.

At the conclusion of the trial, maybe some MAGA fanatic will ignore the evidence and hang the jury, but for the moment let’s assume not. Then there’s a result: not a he-said/she-said, but a verdict. Trump is guilty.

What then? Again, there’s a chance for mercy — a light sentence — but only if Trump accepts the verdict. On the other hand, if he stays his course, if he denounces the judge, the jury, and the entire American justice system, then he needs to go to jail.

If he wants to keep maintaining his alternate reality — and encouraging his followers to join him there — no one can stop him. But showing him mercy in that situation accomplishes nothing for the nation. As far as I’m concerned, in that scenario he can stay in prison until he dies. It’s only just.

[1] 30% of Democrats in one poll, though I find myself suspicious. A number of the questions in the poll frame issues in a Trump-friendly way — like asking people if they think Joe Biden or Hillary Clinton also mishandled classified documents before asking their opinion of the Trump indictment. So I wonder if the poll didn’t so much measure public opinion as talk people into something, a technique known as “push polling“.

I’ll bet if you pushed in the other direction, preceding the pardon question with ones framing the situation against Trump (“Should former presidents be above the law?”), you’d get very different results.

Nonetheless, I’m sure the number of Democrats supporting a pardon is not zero, because I know one personally.

[2] Ordinarily, I would wait to see the indictment and hear his potential defenses before I declared him guilty. But we all saw the January 6 hearings, where nearly all the witnesses were Republicans, including many from his own administration; he fought to keep as many of them as possible from testifying; and the people most loyal to him either defied subpoenas or repeatedly pleaded the Fifth Amendment rather than try to clear him. He’s guilty.

[3] That’s why he keeps getting surprised by the people he appoints to office. Jeff Sessions, John Kelly, Bill Barr, Pat Cipollone — they were on his side, so why did they stop doing what he asked them to do? Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett — they were supposed to be Trump-lovers, so why didn’t they give him the presidency after he lost the 2020 election? How did they become Trump-haters so quickly?

[4] Ron DeSantis is already auditioning for this role by abusing his power against Disney and passing laws targeting trans people that have no chance in the courts because they’re obviously unconstitutional.

[5] The two parties are not the same in this regard. Republicans “opened Pandora’s box” by impeaching President Clinton on flimsy grounds, and Democrats could have fired back by targeting his successor (George W. Bush) for his torture policies (which would not have been so flimsy). But the day after the 2006 election that made her speaker, Nancy Pelosi announced that impeachment was “off the table”.

[6] There’s an echo here of the Big Lie. On January 6, when Ted Cruz argued against Congress certifying Biden’s election, he called for appointing an electoral commission “to conduct a 10-day emergency audit, consider the evidence, and resolve the claims [of fraud]”. (It’s a mystery to me what he thought could be accomplished in those ten days. If the commission came back and said, “We haven’t found any evidence of fraud, so Biden won”, would Trump have said “Well, OK then”?)

In his argument for delaying certification, Cruz did not point to any evidence of fraud, but to polls that said large numbers of Americans believed there might be fraud.

Recent polling shows that 39% of Americans believe the election that just occurred, “was rigged.” You may not agree with that assessment. But it is nonetheless a reality for nearly half the country. … Tens of millions of Americans will see a vote against the objection as a statement that voter fraud doesn’t matter, isn’t real and shouldn’t be taken seriously.

Why did “tens of millions of Americans” believe the 2020 election was rigged? Because Trump and his supporters had lied to them. Delaying certification would have rewarded Trump for lying so successfully.

Same thing here. Trump’s done a very good job of fooling his supporters into thinking he’s being persecuted. But he isn’t; he’s being prosecuted because he committed crimes. The government should deal with reality rather than shadow-box with the effects of Trump’s lies.

[7] No one ever argues that Trump should do something he doesn’t want to do because it would be good for the country. Such considerations only apply to Biden.

By weeklysift | Tagged | Comments (24)

Sam Alito: yet another corrupt conservative justice

June 26, 2023 – 9:03 am

We’ve already heard numerous examples of Clarence Thomas taking gifts he shouldn’t and not reporting them, as the law demands.

This week, Pro Publica reported that Justice Samuel Alito accepted a flight on billionaire Paul Singer’s private jet, so that the two of them could go on an outing at a thousand-dollar-a-day Alaskan fishing lodge. (Another rich conservative donor covered the cost of the lodge. Since he owned the lodge, this was — arguably, but also debatably — “personal hospitality”, which is allowed.) The outing was organized by the Federalist Society’s Leonard Leo, who also suggested Singer provide Alito’s transportation.

Alito did not report the trip as a gift, and later voted with a 7-1 Supreme Court majority that ruled in Singer’s favor in a dispute with the government of Argentina. Singer’s hedge fund made billions as a result.

Pro Publica says it would have cost $100K for Alito to charter a similar jet himself, though it’s hard to say what that number means. If he had been forced to find his own transportation, Alito would undoubtedly have found something cheaper, so it’s hard to estimate the value of the ride to him. (Imagine that a rich friend drives me to the airport in his Rolls Royce. It might cost me thousands to duplicate that experience on my own. But if he hadn’t offered, I’d probably have just spent $100 on a cab. Would I have spent $300 on a Rolls Royce cab, were such a deal available? Probably not.)

Anyway, ProPublica quotes law professor Charles Geyh, who gets to the heart of the matter:

If you were good friends, what were you doing ruling on his case? And if you weren’t good friends, what were you doing accepting this?

The Wall Street Journal printed Alito’s response to the article before the article itself came out, which strikes me as a blight on the reputation of the WSJ. ProPublica’s editor commented: “We’re curious to know whether the Journal fact-checked the essay before publication.” (Several observers wonder if this level of access is payback for Alito leaking secret court information to the WSJ. Or, as the Above the Law blog comments: “Sam Alito just went out of his way to confirm for everyone that he’s talking directly to the WSJ editors — who were as deep in the Dobbs leak as any publication except Politico.”)

Alito’s defense is a technical (and self-serving) reading of the rules on recusal and disclosure. The recusal rules say “There is an appearance of impropriety when an unbiased and reasonable person who is aware of all relevant facts would doubt that the Justice could fairly discharge his or her duties.” Alito boldly declares:

No such person would think that my relationship with Mr. Singer meets that standard.

I guess I’m just not unbiased and reasonable. Neither is the NYT’s Jesse Wegman, who asked “Does Justice Alito Hear Himself?“.

[C]an anyone say with a straight face that no “unbiased and reasonable person” would question the justice’s impartiality when he votes for someone who gave him a valuable gift? Isn’t there at least the appearance that something other than the strict application of the rule of law is at work?

I’m reminded of a quote often attributed to Jesse Unruh, a mid-20th-century California legislator of somewhat dubious reputation: “If you can’t take their money, drink their liquor, fuck their women, and then come in here the next day and vote against them, you don’t belong here.”

However, even discussing the technical legality of Alito’s actions and disclosures misses the point: If the rules say that it’s OK for justices to receive expensive gifts and favors from billionaires and then rule in their favor, then the rules are wrong.

The WaPo’s Ruth Marcus applies some common sense to Alito’s self-justification:

The game here isn’t — at least it shouldn’t be — to figure out how much you can take in the way of freebies and keep that hidden. It should be to behave in a way that is above reproach and comply with the spirit of the ethics rules. Justices scouring the code for loopholes that seem to shield their bad behavior is not a good look.

Defenses of the current Supreme Court ethics policy rely on a very narrow definition of corruption: quid pro quo. In other words, we make an explicit agreement that you’ll pay me money and I’ll rule in your favor. TPM’s David Kurtz admits we’re not seeing that kind of deal-making:

The reporting so far isn’t revealing sketchy quid pro quos. The justices aren’t for sale. They’re not crafting opinions based on these freebies.

What’s actually going on is a much more subtle and insidious: The Right, under the guidance of Leonard Leo, has created an environment in which conservative justices can live the high life of free yacht cruises and luxury resort vacations, as long as they remain conservatives in good standing. If, however, they should follow the path of former Republican appointees like David Souter and John Paul Stevens and stray into liberalism, all those invitations from billionaires would dry up.

Of course Alito and Thomas know that. And it can’t help but influence their thinking. They’re in a position similar to a mega-church pastor who can’t let himself examine his doubts about God too closely. There may not be any quid-pro-quos here, but it’s corruption all the same.

It’s hardly a new observation that the Right engages in projection: What they accuse the Left of doing is usually little more than a confession of what they’re doing themselves. But even knowing how common the pattern is, this Leonard Leo statement is striking:

We all should wonder whether this recent rash of Pro Publica stories questioning the integrity of only conservative Supreme Court Justices is bait for reeling in more dark money from woke billionaires who want to damage this Supreme Court and remake it into one that will disregard the law by rubber stamping their disordered and highly unpopular cultural preferences.

Wow. Billionaires using dark money to reshape the Court in order to push an unpopular cultural agenda … like reversing Roe v Wade, say? Who could imagine such a thing?

By weeklysift | Tagged , | Comments (8)

The Mar-a-Lago Documents Indictment

June 12, 2023 – 9:52 am

Legally, Jack Smith has Trump dead to rights.
Now we get to see whether facts and the law still matter.

Thursday night, we heard (at first via Trump himself) that a Florida grand jury convened by Special Counsel Jack Smith had returned an indictment in the Mar-a-Lago documents case. At first, most observers expected that we wouldn’t see the indictment itself until tomorrow, when Trump will be officially processed. But Friday the indictment was unsealed. In all there are 37 charges against Trump:

  • 31 counts of “willful retention of national security information”. This is one fundamental crime applied to 31 documents, some classified at the very highest levels.
  • one count of “conspiracy to obstruct justice”
  • one count of “withholding a document or record”
  • one count of “corruptly concealing a document or record”
  • one count of “concealing a document in a federal investigation”
  • one count of “scheme to conceal”
  • one count of “false statements and representations”

Trump’s valet Walt Nauta is also named as a co-conspirator in counts 32-36, plus has his own count of “false statements and representations”.

If you add up the maximum sentences of all the charges, Trump could theoretically be sentenced to hundreds of years. By that’s a pointless exercise, because sentencing seldom works that way. It’s enough to point out that (if convicted and jailed) Trump, who will turn 77 on Wednesday, faces a strong likelihood of dying in prison.

Special Counsel Jack Smith made his first public appearance Friday. His statement was short and made a few simple points:

  • Trump was indicted “by a grand jury of citizens in the Southern District of Florida”. In other words, while Trump may rail against Smith himself or Merrick Garland or President Biden, the ultimate decision was made by ordinary American citizens with no political ax to grind. Given that Trump carried Florida in 2016 and 2020, and that Republicans swept the state in 2022, it’s quite likely that many of the jurors are Republicans who have voted for Trump in the past. [1]
  • If you want to “understand the scope and the gravity of the crimes charged”, you should read the indictment.
  • “Our laws that protect national defense information are critical to the safety and security of the United States and they must be enforced. Violations of those laws put our country at risk.”
  • “Adherence to the rule of law is a bedrock principle of the Department of Justice. And our nation’s commitment to the rule of law sets an example for the world. We have one set of laws in this country, and they apply to everyone.”

The narrative. Smith has written an indictment that is more revealing and readable than the 34-count indictment Manhattan DA Alvin Bragg produced for the hush-money case in April. It tells the following story:

While he was president, Trump collected souvenirs (“newspapers, press clippings, letters, notes, cards, photographs, official documents, and other materials”) that he jumbled together in cardboard bankers’ boxes (like the ones in my storage space). When he left the presidency, he had “scores” of those boxes transported from the White House to Mar-a-Lago.

Beginning in May, 2021, the National Archives and Records Administration (NARA) made a series of fruitless requests that Trump turn over the official documents, which belong to the US government. [2]

Meanwhile, stacks of Trump’s boxes were being shuttled from place to place inside Mar-a-Lago. In addition to being Trump’s residence, Mar-a-Lago was a club which (during the period in question) had more than 100 employees and tens of thousands of guests who were not cleared to see classified documents. Many of these locations (a ballroom, a bathroom) were highly insecure. On one occasion a stack of boxes tipped over, spilling the contents — including classified documents — onto the floor of a storage area.

In January of 2022, 15 boxes were shipped to NARA. These boxes included 197 classified documents, including 30 top secret documents, some of which had the additional markings of SCI (special compartmented information) and SAP (special access program), indicating that they were particularly sensitive, even compared to other top-secret documents. [3]

The indictment notes two occasions when Trump showed classified documents to someone without clearance to see them. In one conversation, which was taped, Trump showed a plan to invade “Country A” to an author, saying “When I was president I could have declassified it. … Now I can’t.”

We’ve landed in the Spiderverse where Trump actually pays for his crimes. https://www.newyorker.com/humor

NARA told the Department of Justice about these documents in February, 2022, and a criminal investigation was opened in March. A federal grand jury began investigating in April. On May 11, the grand jury subpoenaed “all documents with classification markings in the possession, custody, or control of TRUMP or The Office of Donald J. Trump”.

In conversations with two of his lawyers (one of whom appears to be Evan Corcoran), Trump suggested a variety of illegal strategies: simply not responding to the subpoena, saying there were no documents, or getting rid of the documents. He hinted that Corcoran should dispose of the documents for him, so that he could deny doing it. (These conversations are reminiscent of Michael Cohen’s descriptions of his conversations as Trump’s lawyer. “He doesn’t give you orders. He speaks in a code … much like a mobster would do.”)

When it became clear that Corcoran would not commit one of the crimes Trump was suggesting, Trump schemed with Nauta to circumvent Corcoran: He knew when and where Corcoran would search for documents subject to the subpoena, and he had Nauta move boxes around so that Corcoran wouldn’t find them.

After Corcoran found 35 classified documents, Trump made a nonverbal suggestion that Corcoran not turn them all over to the government.

He made a funny motion as though – well okay why don’t you take them with you to your hotel room and if there’s anything really bad in there, like, you know, pluck it out. And that was the motion that he made. He didn’t say that.

Corcoran had the 35 documents turned over, and drafted a certification (which he had another lawyer sign) saying that a diligent search had been done and these were all the documents the subpoena sought.

In July, the FBI acquired Mar-a-Lago surveillance video showing the boxes being moved. In August, they returned with a search warrant and found 102 classified documents Corcoran had missed — 27 from Trump’s office and 75 from the storage room Corcoran had searched. 17 of the documents were top secret.

The 31 documents in the indictment. In his public statements, Trump has made fanciful claims that he could declassify documents by thinking about them, or that there was a standing order declassifying any documents he took up to the White House residence. [4] As anyone who has ever had a security clearance should understand, these claims are not just false, they are absurd; the system couldn’t work that way. [5]

The indictment faces a problem that shows up whenever someone is prosecuted under the Espionage Act: It can’t just tell us what information the defendant revealed or risked, because then the indictment itself would reveal that information. (It’s a problem similar to one in the stoning scene from Life of Brian, where the priest can’t specify the accused’s blasphemy without himself saying the forbidden name of God.)

This problem will only get worse when the case goes to trial: The judge will need access to the 31 documents, and large parts of them (possibly redacted, with the judge’s approval) will have to be made available to Trump’s lawyers.

But the indictment includes only terse summaries. Document 17, for example, is top secret with something about its special markings redacted. (I’d guess the markings included a code word.) The summary says only: “Document dated January, 2020 concerning military capabilities of a foreign country.”

The indictment also lists the intelligence services that classified the documents, which includes all the major ones: CIA, NSA, DoD, NRO, and several others.

From the list, and the fact that the totals in the indictment indicate that not all the top-secret documents are listed, we can make two deductions:

  • The most sensitive documents Trump compromised are not listed at all. So whatever you think after reading the listed summaries, the real security breach is worse than that.
  • All the intelligence agencies would have liked to leave their documents off the list and out of the trial, but they must have gotten together and agreed that they would each pony up something.

Assessing the damage. From the early days of the Trump administration, it was clear that Mar-a-Lago posed a security problem. He had not even been in office for a month when North Korea launched a missile test while Trump was entertaining Japanese Prime Minister Shinzo Abe at Mar-a-Lago (and making a profit off the entourages of both leaders).

In previous administrations, the leaders would be ushered away into the White House situation room or the nearest secure location by their aides. The documents and advice they receive at such moments are often some of the nation’s most closely guarded secrets. … As CNN reported and the Facebook photos later illustrated, Abe, Trump and their parties stayed at their tables as their aides passed them bits of paper, lighting them up with their mobile phones so they could be read, while the keyboard vocalist hired for the night sang on and Mar-a-Lago guests huddled around to get a better view.

So foreign intelligence services have had years to place agents at the club, as members, guests, employees, or even gate-crashers. It seems likely that some have succeeded. (Picture this cover story for a spy: Some foreign friend or business associate of Jared Kushner has a nephew who just flunked out of Florida Atlantic and needs a job.)

Friday night, MSNBC’s Alex Wagner and Chris Hayes interviewed former CIA Director John Brennan. Brennan made a few of the same points I just made, and then said this:

WAGNER: Republicans in Congress have sort of been hiding behind the fact that the intelligence community assessment regarding the implications, the fallout from the retention of these documents — that assessment is not complete. And they’re saying “We don’t know yet what damage, if any, has been done to national security.” You’re suggesting that that assessment is quite complicated. Is your outside guess that this is going to take quite some time longer? …

BRENNAN: Quite frankly, I don’t think that the intelligence community will ever be able to determine conclusively what might have been compromised.

In addition to whatever our enemies may have found out, Trump has done incalculable damage to our relationships with our allies. Allied intelligence services (say, Israel’s Mossad or the UK’s GCHQ) risk revealing their own spies and capabilities when they share secrets with the US. What might they start holding back, now that they have seen how badly the US protects such information?

Likely defenses. Normally, when we talk about an indicted person’s possible defenses, we mean legal defenses — arguments or testimony or evidence that can be presented in court to undermine the prosecution’s case and convince either the judge or the jury to let the defendant off.

That’s not what we’re going to see from Trump, though, because he’s just guilty. Smith has him dead to rights. If this were an ordinary trial, any competent lawyer would be negotiating a deal to minimize his jail time.

But Trump’s hopes lie outside the courtroom. If he can stall long enough, the 2024 election might happen before he’s convicted. And if the economy is in bad enough shape — say, because Trump’s friends in Russia and Saudi Arabia engineer a huge run-up in gas prices — he could win it. Then he could fire Smith and pull the plug on any federal prosecution. And if New York or Georgia find him guilty of something, he can hole up in the White House and dare them to come get him.

Trump’s previous run-ins with the legal system have proceeded on two tracks: an in-court track where his lawyers present theories that are bizarre but are at least coherent, and an in-public track where Trump presents wild, baseless, contradictory arguments that are persuasive to his followers, but would get his lawyers sanctioned if they brought them into court.

That split was clearest in the 55 lawsuits he filed (and lost all but one inconsequential one) to overturn his defeat in the 2020 election. In public, Trump and his lawyer Rudy Giuliani were alleging all kinds of fraud for which they had no evidence. In front of judges, however, Trump’s lawyers said nothing of the kind, instead arguing that technical details about how small numbers of ballots were handled should invalidate elections in entire states.

We are already seeing the same kind of split in this case. Trump and his followers howled with rage after the indictment came out, but none of what they’ve said challenges the evidence in the indictment or the laws he is accused of violating. Instead, Trump issues blanket denials (“I am an innocent man“), attacks Jack Smith (“deranged”, “lunatic”, and most bizarrely suggesting that Jack Smith is not his real name, whatever that is supposed to imply), engages in whataboutism regarding the Bidens or the Clintons, and says that indicting a leading presidential contender makes the US a “banana republic“. [6]

None of that can be brought into court, where his lawyers will have to stick to this case and the evidence against him.

Worst of all, Trump and many of his allies are broadly hinting at violence. On stage at Trump’s Saturday rally in Georgia, election-denier Kari Lake said:

I have a message tonight for Merrick Garland and Jack Smith and Joe Biden — and the guys back there in the fake news media, you should listen up as well, this one is for you. If you want to get to President Trump, you are going to have go through me, and you are going to have to go through 75 million Americans just like me. And I’m going to tell you, most of us are card-carrying members of the N.R.A. [7]

Needless to say, Trump’s lawyers would be disbarred if they went into court and threatened violence. They probably also will not mention obviously false interpretations of law, like the notion that the Presidential Records Act gives Trump the right to do “whatever I want” with highly classified documents [see endnote 2 again], or that he could declassify documents with his mind.

Trump also will not testify in his own defense, because Donald Trump is a terrible witness. He can lie proficiently when he monologues to a sympathetic crowd or is interviewed by a journalist he can talk over. But when he faces cross-examination, the penalty of perjury, and a judge with authority to hold him in contempt, he is unconvincing and likely to reveal (or even brag about) facts that hurt his defense.

A recent case in point is his deposition in the E. Jean Carroll lawsuit. (There is no Fifth Amendment right in civil lawsuits, so he had to submit to an interview.) Trump’s lawyers did not put him on the stand in his own defense, and his taped deposition was cited by Carroll’s lawyers, not Trump’s.

That will leave Trump’s legal team without much to argue, which is what happens when the evidence clearly says that a defendant is guilty.

The judge. Given that Trump’s main hope is to stall and hope that he (or some sympathetic Republican) wins the presidency in 2025, it was very disturbing to hear the case assigned to Judge Aileen Cannon, who was clearly in the tank for Trump when she oversaw his lawsuit challenging the FBI’s search of Mar-a-Lago and trying to get the seized documents back.

In issuing a series of rulings favorable to him, Judge Cannon, a Trump appointee, effectively disrupted the investigation until a conservative appeals court ruled she never had legitimate legal authority to intervene.

Her rulings were not just bad, they were outrageous. A three-judge panel of appeals court judges (two appointed by Trump) reversed her decisions unanimously.

The NYT went on to explain that the choice of Cannon was random, but weighted by various factors that made her a more likely choice than any of the six other eligible judges.

Cannon may be shy about showing such blatant favoritism again, but she doesn’t have to. She can just slow-walk the trial until after the 2024 election. If Republicans win, the case will likely go away.

People who are not worried about this possibility give two reasons for their calm:

  • The same appeals court that reversed Cannon the first time might keep Cannon in line or sympathize with a DoJ motion to assign the case to a different judge.
  • Jack Smith had to know Cannon was a possibility when he sought the indictment in Florida rather than DC. He must have had some reason to accept that risk.

We’ll see. The first hints will come tomorrow.

Endgame. But assume for a minute that a trial (either here or somewhere else) actually takes place and results in a prison sentence. Several people have remarked on the logistical difficulties of imprisoning an ex-president — like, does his secret service detail go to prison too?

But I don’t see Trump voluntarily submitting to demeaning restrictions, even if it’s just long-term house arrest. My opinion, based on very little, is that he’ll wind up in either Russia or Saudi Arabia.

People I’ve raised this possibility to are way too confident in the government’s ability to prevent it. “Take away his passport,” they say. But suppose Trump sees the writing on the wall while he’s still campaigning. He schedules a rally in Alaska, but his campaign plane passes the airport and just keeps flying towards Russia. What’s the government going to do, shoot it down?

[1] I wasn’t able to find the number of jurors on this specific grand jury, but by law a federal grand jury has 16-23 members, and 12 votes are required to approve an indictment. The exact number of votes for the Trump indictment is unknown, which is typical.

[2] Trump has tried to muddy up people’s understanding of the PRA, but it’s actually quite clear.

Upon the conclusion of a President’s term of office, or if a President serves consecutive terms upon the conclusion of the last term, the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.

While he is still in office, a president can go back-and-forth with the Archives over what is a presidential or a personal record. But that negotiation ends when he leaves office. And much as I hate to agree with Bill Barr, he’s right about this:

Battle plans for an attack on another country or Defense Department documents about our capabilities are in no universe Donald J. Trump’s personal documents.

[3] I used to have a top-secret clearance, but never saw an SCI or SAP document. I know someone who was additionally cleared into at least one SCI compartment, but never saw an SAP document. I am personally appalled by the idea of such documents sitting in cardboard boxes in a Mar-a-Lago bathroom, and being moved about by Mar-a-Lago employees with no clearances whatsoever.

People with clearances — there are millions of us — routinely endure all sorts of hassles to secure their documents. For example, I used to have a safe in my office where the classified documents in my possession were supposed to be kept whenever I wasn’t using them. If I was reading a classified document, I couldn’t go to the bathroom without either taking a document with me, finding some other cleared person to babysit it, or putting it back in the safe. And I couldn’t write down the safe’s combination, because if I did, that note would become a classified document and belong inside the safe.

If you’ve jumped through such hoops for years, it is deeply offensive to read about Trump’s cavalier treatment of documents far more sensitive than anything I came into contact with.

[4] These defense are not just absurd (see next note), but they’re also largely irrelevant, because the Espionage Act is older than the classification system.

The World War One era law predates classification of documents but makes it a crime to willfully retain national defense information that could be useful to foreign adversaries.

A document’s classification is an indication of how useful it could be to foreign adversaries. But under the Espionage Act, the utility is the legal standard, not the classification.

[5] Trump talks as if pieces of paper are classified, and so their status can be changed by moving them from here to there. Actually, information is classified. So if a document is classified or declassified, all copies of it share the same status.

Suppose that a dozen people have copies of the same top-secret document. When Trump (while still president) looks at his copy and thinks “declassified” or takes it up to the White House residence, invoking his fantasized automatic declassification order, the other 11 copies would be instantaneously declassified as well, without their possessors being notified in any way. If any of them should happen to choose that moment to send a copy to The New York Times or the Russian embassy, that presumably would be OK.

It’s appalling that Trump would even imagine such a system. Documents are classified for reasons, which might include sources (i.e., protecting the lives of spies) or methods (i.e., not letting our enemies know how much our surveillance systems can see or what our analysts can deduce from that information). It would be ridiculously irresponsible to declassify a document without knowing those reasons and weighing the costs and benefits.

So the idea that anyone would declassify a document purely for personal convenience — because I want to read it here rather than there — should strike horror into the heart of any loyal American citizen.

[6] Apparently Scotland is a banana republic too, since Nicola Sturgeon, who was First Minister as recently as March, was arrested for questioning in a corruption investigation Sunday.

Current or former political leaders facing legal troubles is not not uncommon in countries that bear no resemblance to the stereotypical “banana republic” — a term which Latin Americans understandably find offensive. Israeli Prime Minister Netanyahu has been charged. Former Italian Prime Minister Silvio Berlusconi (who died this morning at 86) was convicted of several crimes. Former French Presidents Nicolas Sarkozy and Jacques Chirac have been convicted. Former German President Christian Wulff faced trial for corruption, but was acquitted.

Healthy democracies recognize that their laws apply even to leaders and former leaders.

[7] Lake’s numbers don’t work. The NRA has only 4.3 million members, so they can’t constitute “most” of the 74.2 million who voted for Trump in 2020.

By weeklysift | Tagged , | Comments (39)

Joe Biden is good at governing

June 5, 2023 – 9:12 am

The peaceful resolution of the debt-ceiling confrontation is the latest example of a pattern: Unlike his predecessor, President Biden doesn’t brag and exaggerate. He just gets stuff done.

Saturday, President Biden signed a bill that suspends the debt ceiling for the rest of his presidency, ending a crisis that threatened to cause a global economic catastrophe. I’ve explained previously why the debt ceiling shouldn’t exist at all, so I’d have been happier if it were eliminated completely. But by pushing the next crisis off until at least 2025, Biden has ensured that the American people will have a chance to remove Republicans from the levers of power before they can hold the US economy hostage again.

How we got here. Some kind of debt-ceiling showdown became likely last November when the 2022 elections gave Republicans a narrow majority in the House. It seemed almost certain in January when Kevin McCarthy had to make big concessions and promises to the far-right “Freedom” Caucus in order to become Speaker. [1]

This left Biden in a tricky position. On the one hand, he didn’t want to pay ransom (in the form of budget cuts and policy concessions) to McCarthy in response to what was basically a terrorist threat. [2] On the other, the Republican House majority has a legitimate role to play in working out future budgets. So Biden did need to negotiate with McCarthy, he just didn’t want to negotiate over this. Above all, he didn’t want to pay ransom in exchange for a debt-ceiling increase that would run out before the end of his term, setting up a second ransom payment later. [3]

The political implications of the federal budget are also tricky: Polls regularly show that the American people believe the federal government spends too much. But they also dislike cuts to the big-ticket programs the government spends almost all the money on — Social Security, Medicare, Medicaid, and defense — as well as many other programs. [4] So politically, the ideal position is to demand spending cuts in general without totaling up the numbers or targeting any specific programs.

Biden began fencing McCarthy in almost immediately. During his state of the union address in February, he baited Republicans into yelling out against his claim that they wanted to cut Social Security and Medicare. Rather than argue, Biden deftly accepted their nationally televised pledge not to make such cuts. “As we all apparently agree, Social Security and Medicare is off the books now, right?”

Biden’s second tactic was to insist that McCarthy put his demands on paper and prove that his caucus supported them. After all, Biden could hardly be expected to compromise with House Republicans if they couldn’t compromise among themselves.

This almost worked, but in April, by a 217-215 vote, McCarthy managed to get House approval of a bill to extend the debt ceiling until March, 2024, while rolling federal spending back to 2022 levels and imposing a 1% per year cap on total spending growth, which would be less than inflation. [5]

But while McCarthy succeeded in the task Biden had set him, the bill gave Democrats a target to shoot at. The White House responded by listing programs that Republicans hadn’t exempted from cuts. McCarthy’s bill would

strip away health care services for veterans, cut access to Meals on Wheels, eliminate health care coverage for millions of Americans and ship manufacturing jobs overseas.

Immediately, Republicans started backpedaling: Veterans benefits were also off the table, and probably defense as well.

Then Biden and McCarthy started negotiating directly. Biden had a clear strategy:

In pursuit of an agreement, the Biden team was willing to give Republicans victory after victory on political talking points, which they realized Mr. McCarthy needed to sell the bill to his conference. … But in the details of the text and the many side deals that accompanied it, the Biden team wanted to win on substance.

The result was an agreement that in essence paid no ransom for the debt ceiling; it was more-or-less the deal that might have been expected from a pure budget negotiation after a clean debt-ceiling increase. Vox summarizes:

Neither party got everything it wanted. Domestic spending will effectively be held at something close to the status quo in nominal terms, which means a cut when accounting for inflation. It’s still at a much higher level than Republicans wanted, and lower than Democrats would have preferred (though they do not see the cuts as devastating).

On a set of other policy issues where Republicans made big demands, Democrats granted only some limited concessions — for instance, on work requirements for some food stamp recipients, and on agreeing to restart student loan repayments in August, the latter of which the Biden administration had already said they’d do.

Don’t crow. Biden understood that bragging about his negotiating success wouldn’t help.

“[O]ne of the things that I hear some of you guys saying is, ‘Why doesn’t Biden say what a good deal it is?’” President Joe Biden said to reporters yesterday afternoon before leaving the White House on the Marine One helicopter. “Why would Biden say what a good deal it is before the vote? You think that’s going to help me get it passed? No. That’s why you guys don’t bargain very well.”

After the bill had made it through both the House and Senate, but before he signed it, Biden did make a statement [video, transcript]. In it he did two things: outlined what was good about this agreement,

We averted an economic crisis, an economic collapse. We’re cutting spending and bringing the deficits down at the same time. We’re protecting important priorities, from Social Security, to Medicare, to Medicaid, to veterans, to our transformational investments in infrastructure and clean energy.

and shared credit for it.

I want to commend Senator — Speaker McCarthy. You know, he and I, we — and our teams — we were able to get along and get things done. We were straightforward with one another, completely honest with one another, and respectful with one another. Both sides operated in good faith. Both sides kept their word.

And I also want to commend other congressional leaders: House Minority Leader Jeffries, Senate Majority Leader Schumer, Senate Minority Leader McConnell. They acted responsibly and put the good of the country ahead of politics.

The final vote in both chambers was overwhelming, far more bar- — bipartisan than anyone thought was possible.

I am reminded of a famous Harry Truman quote: “It is amazing what you can accomplish if you do not care who gets the credit.”

The mess he inherited. The one negative consequence of Biden’s refusal to tout himself (as President I-Alone-Can-Fix-It ceaselessly did, often by lying) is that he doesn’t get nearly enough credit for a remarkable economic performance.

On Inauguration Day, the country was bottoming out from the disruption of the Covid pandemic. Unemployment was at 6.3% and many businesses were still closed, many schools were holding classes remotely, the FY2020 budget deficit was a record $3.1 trillion, and more than 23 thousand Americans were dying of Covid every week.

Today, unemployment stands at 3.7%, with more Americans working than ever before. The FY 2023 deficit is coming in around $1.5 trillion, and weekly Covid deaths are down to 2,216.

The cost of creating 12 million jobs has been inflation, which the Federal Reserve has countered by raising interest rates from barely above zero to 5%, which has inflation falling from a peak of 9.1% a year ago to 4.9% last month. Ordinarily, that would lead to a recession, but it increasingly looks like the Fed and the Biden administration may engineer a soft landing for the economy.

Some kind of recovery was probably inevitable. Unemployment was going to drop as businesses reopened, and Covid deaths were going to drop as people got vaccinated. But the speed and smoothness of the recovery has been amazing, and Biden’s policies have a lot to do with that.

Partisan and bipartisan accomplishments. Biden has never had the big congressional majorities President Obama enjoyed in his first two years, or that LBJ and FDR had in their transformational eras. And yet he has gotten a lot done, finding bipartisan support for bills like infrastructure, the CHIPS Act, and the debt ceiling, but not being afraid to push bills like his Covid stimulus plan and the Inflation Reduction Act through on party-line votes (which required all fifty of the Democratic votes in the Senate).

In an era when everyone says Washington is broken, Joe Biden has made it work better than many presidents with much more support in Congress.

On the world stage, Biden has deftly repaired the NATO alliance Trump had left frayed, and mobilized it to help Ukraine defend itself against the Russian invasion.

Age? Biden’s age, combined with a lifelong stutter that often causes him to stumble over words, has made him vulnerable to being smeared as senile. Fox News hosts often reference Biden’s “dementia” as if it were an established fact. Last summer, Tucker Carlson said this on the air:

Everybody watching, everyone in the media, that would include Barack Obama’s former advisers, is now in agreement that Joe Biden is senile and cannot govern the United States.

And yet, whenever Biden needs to perform, he does. At the state of the union address, he didn’t just mumble through a teleprompter speech, he engaged the audience and recognized when his Republican hecklers had dug themselves a hole he could take advantage of. He baited the likes of Lauren Boebert and Marjorie Taylor Greene, and then sprung a trap on them.

That’s quite a trick for a dementia sufferer.

House Freedom Caucus member Nancy Mace of South Carolina inadvertently called attention to the contradictions in Republican talking points when she responded to the debt ceiling deal by saying: “Republicans got outsmarted by a President who can’t find his pants.”

We don’t know for sure whether Biden was wearing pants during the 90-minute phone call with McCarthy that firmed up the debt-ceiling deal. But if “everybody watching” is honest with themselves and looks at the record of accomplishment over the last 2 1/2 years, I think they’ll have to admit that somebody in the Biden administration is pretty sharp. My best guess is that it’s Joe Biden.

Contrast with The Former Guy. Starting with his pre-presidential best-seller The Art of the Deal, Donald Trump has always touted himself as a great negotiator, and has made amazing claims about what his deal-making prowess can accomplish in the presidency. He’s still doing it today, claiming that he can settle the Ukraine War in “one day, 24 hours” and negotiate a compromise on abortion “so that people are happy“.

His actual record in deal-making, though, is full of failure. He tore up Obama’s nuclear deal with Iran, claiming that once sanctions were reimposed, Iran’s leaders “are going to want to make a new and lasting deal.” But that deal never emerged, and today Iran is on a path to getting nuclear weapons.

He said he would get North Korea to give up its nuclear weapons (and even claimed Kim Jong Un had agreed), but that never happened either.

When he pulled the US out of the Paris Climate Accords, he said he’d negotiate “something that we can do that’s much better than the Paris Accord. And I think the people of our country will be thrilled, and I think then the people of the world will be thrilled.” That also never happened.

Biden’s bipartisan infrastructure bill represents success in an area where Trump repeatedly failed. The Trump administration’s many attempts to declare an “infrastructure week” eventually became a joke. Even when his party controlled Congress, he couldn’t make a deal.

Likewise, his promise to repeal-and-replace ObamaCare fell apart despite unified Republican control of Congress, because Trump couldn’t lead his party to agree on a replacement plan. (During the 2016 campaign, he claimed to have a plan that would “save $’s and have much better healthcare!” During his four years in office, he never revealed it.) Democrats were willing to give him $25 billion to build his wall (another major 2016 campaign promise) in exchange for a path to citizenship for the Dreamers, but Trump couldn’t take “yes” for an answer.

Even the few deals he got done amounted to far less than he claimed. The agreement that ended his costly trade war with China did not result in the $200 billion in sales it was supposed to. The deal that replaced NAFTA was mostly just NAFTA, plus some concessions the Obama administration had already gotten during the TPP negotiations.

Trump’s lousy deal-making ability comes down to two shortcomings

  • His zero-sum worldview leaves no room for a win/win outcome. He can only win if the other guy loses.
  • His playbook only has one tactic: Make big demands, and then keep ratcheting up the pressure until his opponent gives in. This works fine if he holds all the cards, but in any more equal situation the other side eventually walks away.

2024. If we really do have a Biden/Trump rematch in 2024, it will be a test of the American electorate: Can a majority of voters tell the difference between hype and reality? Will they vote for a guy who puffs himself up and makes exaggerated claims of accomplishments he didn’t achieve and abilities he doesn’t have? Or will they recognize the guy who has been working hard for them and getting results?

If we can’t make that choice correctly, then I would claim it’s the American public that has suffered a severe cognitive decline.

[1] As Politico wrote at the time:

The emerging agreement also addresses the looming need to raise the debt ceiling indirectly, declining to commit conservatives to supporting any hike without other budgetary austerity they have insisted on.

[2] When I use loaded terms like hostage, ransom, and terrorist, I feel obligated to explain why they’re justified.

In a negotiation, it’s normal and acceptable to threaten actions the other side won’t like if they don’t give you what you want. What tips that tactic over into hostage-taking is if you’re threatening actions that nobody wants and nobody benefits from.

That’s what happens when kidnappers threaten to kill their hostage, or a terrorist threatens to blow up the plane he’s on. Killing the hostage doesn’t benefit the kidnappers in any way, but they’re counting on the hostage’s loved ones to dislike that option even more than they do.

Same thing here. Sending the United States into default wouldn’t accomplish any purpose for Republicans, and would in fact harm the constituents they represent. But they assume that Biden and the Democrats like that option even less than they do.

[3] If Biden is reelected, he’ll face the debt ceiling again in 2025. But by then, McCarthy may no longer be speaker.

[4] If you force voters to resolve this contradiction, they’ll usually grossly exaggerate the amount of money the government spends on something they don’t like, such as foreign aid, or subsidies for art they find offensive, or welfare payments to able-bodied adults who don’t want to work. In truth, you could zero out these kinds of payments without making much of a dent in the budget deficit.

[5] The narrowness of his margin is why McCarthy can’t let the House expel indicted fraudster George Santos. If Santos had been expelled and replaced by a Democrat, McCarthy’s bill would have failed.

By weeklysift | Tagged , | Comments (12)

Neglected political issues I: Life expectancy

May 29, 2023 – 10:31 am

A number of decades ago, I attended an Arlo Guthrie concert. A presidential primary campaign cycle was heating up — probably 1980, but I’m not sure. Guthrie, in his wise-fool persona, claimed to be anxious about the state of the nation because “All these people on TV, they’re telling me we need leadership and we’re just not getting it.” Then he described how on some recent evening, just before going to bed, he had brushed his teeth and then looked in the mirror and asked himself: “Arlo, did you need leadership today?”

That line was funny — and continues to be funny years later — because it captures the disconnect between political rhetoric and our actual lives. Guthrie’s joke is on us, and how easily manipulated we are. In the heat of a campaign, it’s easy to become either excited or enraged over some “issue” that (when you boil it down) really has no effect on either yourself or anyone you know or care about, and may be little more than a phrase or an image.

And so, during his campaign launch Wednesday, Ron DeSantis talked about the “the woke mind virus”, “woke ideology”, and “critical race theory”. The Republican he hopes to catch up to, Donald Trump, spends most of his speeches talking about his persecution by the Deep State. He offers to replace President Biden’s “weakness” with his own “strength”. Kevin McCarthy and Republicans in Congress have been focused on America’s “spending problem”, an issue whose lack of substance I examined a few weeks ago.

Any of those “issues” might take the place of Guthrie’s “leadership”. I can imagine myself staring into my own bathroom mirror and asking, “Doug, did you need protection from the woke mind virus today?”

Meanwhile, President Biden has been spending his time trying to avoid crashing into the debt ceiling, a looming disaster that is real enough, but is also entirely manufactured. Rather than solve our problems, politicians have created a new one to wrestle with.

Isn’t it wonderful that the external world isn’t presenting any challenges that require our collective action?

Well, except for climate change. Biden seems to know about that problem, but it was all he could do this week to avoid rolling back the anti-climate-change parts of the Inflation Reduction Act. Despite governing a state that will soon start vanishing under rising oceans, DeSantis seemed oblivious, saying “I’ve always rejected the politicization of the weather.” Trump still occasionally refers to climate change as a hoax.

Biden and other Democrats occasionally talk about gun violence, domestic terrorism, and the threats to American democracy. But there is little pending legislation of any consequence on any of those issues, other than efforts at the state level to roll back gun restrictions, increase gerrymandering, and take control of its elections away from one of our largest cities.

And then there are the problems that neither party is talking about. In the coming months I plan to call attention to a few, starting with: declining life expectancy in the United States. It would be bad enough if our political system were simply oblivious to the problem. But in fact political action is causing a lot of it.

Talk about a matter of life and death.

Declining life expectancy. In the United States, like most of the world, life expectancy had gone up and up for centuries, until the last few years. Here’s a graph of US life expectancy from 1860 to 2020.

Except for brief glitches during the Civil War and the World War I/Spanish flu era, life expectancy at birth goes inexorably upward, almost exactly doubling from 39.41 in 1860 to 78.94 in 2015. Not even World War II could bring it down (probably because the health advantages of ending the Depression overcame the casualties of war). Until recently, Americans had come to think of increasing lifespans as an inevitable dividend of scientific progress. Of course our generation would live longer than our parents’ generation, and our children would live longer yet.

Different sources produce slightly different numbers, but just about everybody sees a leveling-off in the mid-2010s, followed by a sharp drop in the last few years to levels not seen since 1996. Nearly three decades of progress have vanished.

Now, there’s an obvious reason for this: the Covid pandemic, which has killed 1.1 million Americans since it started in 2020 (and is not done, even if we’ve stopped paying attention to it). Largely because of mismanagement by the Trump administration and misinformation from the larger MAGA movement (which encouraged lax attitudes, snake-oil cures, and vaccine resistance), we took a bigger hit than most comparable countries. The US has had 3,480 Covid deaths per million people, while Canada has had 1,364, Norway 986, and Australia 801. Even some of the countries hit earlier and harder than the US have fared better in the long run: Italy has had 3,159 deaths per million and Spain 2,595. One likely reason: 86% of Spaniards and 81% of Italians have been vaccinated, compared to 69% of Americans.

But OK then: If Covid is the problem, it should go away as Covid recedes. And that’s happening in the rest of the world. But not here.

The headline from this graph is that life expectancy in comparable countries bounced back in 2021, almost regaining its 2019 level, while life expectancy in the US dropped further. But there’s also a long-term story here: In 1980, US life expectancy was lower than the comparable-country average by less than a year. By 2021, though, the gap had grown to more than six years. Even pre-Covid, there was a 3.8 year gap.

Where did that come from?

Bad habits or bad government? The simple explanations for our long-term life expectancy gap focus on our bad habits: We’re too fat, we’re out of shape, we take drugs, and we kill ourselves and each other at a high rate. It’s easy to tell the life-expectancy story as a crisis of individual moral gumption: If Americans would just eat better, get off the couch, get clean from drug abuse, and deal with our depression and anger problems, we’d live longer.

And all that is true as far as it goes. But if you look at those “moral” problems, each one has a political component.

Guns. Most obviously, our high suicide and murder rates are related to our gun policies. People get depressed and angry in other countries too. But depressed or angry Americans are more likely to have ready access to guns. In 2020, researchers at Stanford published a study on the relationship between guns and suicides:

The researchers found that people who owned handguns had rates of suicide that were nearly four times higher than people living in the same neighborhood who did not own handguns. The elevated risk was driven by higher rates of suicide by firearm. Handgun owners did not have higher rates of suicide by other methods or higher rates of death generally.

The researchers themselves wrote:

Suicide attempts are often impulsive acts, driven by transient life crises. Most attempts are not fatal, and most people who attempt suicide do not go on to die in a future suicide. Whether a suicide attempt is fatal depends heavily on the lethality of the method used — and firearms are extremely lethal. These facts focus attention on firearm access as a risk factor for suicide especially in the United States, which has a higher prevalence of civilian-owned firearms than any other country and one of the highest rates of suicide by firearm.

In general, gun deaths are higher in states with more guns.

Food policy. Obesity is a major factor in Americans’ poor health, and is the one most likely to be seen as a moral issue. (“Just stop stuffing your face, fatso.”) But while we can all imagine ways that we could improve our discipline regarding diet and exercise, it’s also true that it’s hard to live a healthy lifestyle in the United States.

Nationally, our food policy tilts towards putting high-fructose corn syrup in just about everything. Our giant factory farms make meat and dairy cheaper here than in many other countries, but also less healthy. Particularly in our poorer neighborhoods, fast food is easier to find than fresh vegetables. The food industry spends billions every year trying to persuade us to eat fat- and sugar-laden foods.

Compared to cities in other countries, American cities encourage travel by car and discourage walking.

In short, there are reasons we’re fat. And not all of them are lack of willpower.

The place this really becomes clear is when you look at children. Even if you think obese adults lack willpower, do you really hold children responsible for their food-and-exercise choices?

Healthcare. Some politicians like to claim that American healthcare is “the best in the world”. And that may be true if you’re rich or have excellent health insurance, live near a top medical center, and need the kind of major medical interventions American medicine specializes in.

But overall, our public health is terrible compared to other rich countries, all of whom spend less per capita on healthcare than we do. For example,

Among 11 developed countries, the United States has the highest maternal mortality rate, a relative undersupply of maternity care providers, and is the only country not to guarantee access to provider home visits or paid parental leave in the postpartum period, a recent report from The Commonwealth Fund concluded. Compared with any other wealthy nation, the United States also spends the highest percentage of its gross domestic product on health care.

Maternal deaths have been increasing in the United States since 2000, and although 700 pregnancy-related deaths occur each year, two-thirds of these deaths are considered to be preventable.

The statistical term for preventable deaths is “amenable mortality”. In 2019 — pre-Covid, in other words — amenable mortality in the US was responsible for 177 deaths for every 100K people, compared to a 38-country average of 126. Japan and Switzerland had 83, and Canada 116.

The difference is our reliance on the private sector. In the US health-insurance business, the way to make money is to insure only healthy people. Much of the administrative effort in our health-insurance companies is devoted to shifting costs onto someone else, rather than improving health overall.

And of course, the private health-insurance industry has no interest in the poor at all. If poor and lower-working-class Americans aren’t on Medicaid, they’re probably uninsured. Uninsured people fear our expensive healthcare system, and are likely to hope problems go away on their own rather than get them checked out. Those decisions end up killing a lot of people.

One conservative policy designed to limit healthcare spending is to give people more “skin in the game“. In other words, to increase copayments so that people (especially the poor) have more incentive to ignore problems and hope they go away on their own.

Red states and blue states. The policies I’ve been talking about — limiting gun access, subsidizing healthy food choices (or penalizing unhealthy ones), promoting public health, lowering medical copayments, pushing for walkable cities, and making it easier to get health insurance — are classic liberal policies that conservatives ridicule as examples of the “nanny state”. Blue states are more likely to take these actions than red states.

And guess what? Blue states have higher life expectancy than red states. Paul Krugman tweeted the following chart comparing Biden’s margin over Trump in 2020 to each state’s change in life expectancy over the previous 30 years:

He comments:

Life expectancy is hugely unequal across U.S. regions, with major coastal cities not looking much worse than Europe but the South and the eastern heartland doing far worse.

But wasn’t it always thus? No. Geographic health disparities have surged in recent decades. According to the U.S. mortality database, as recently as 1990, Ohio had slightly higher life expectancy than New York. Since then, New York’s life expectancy has risen rapidly, nearly converging with that of other rich countries, while Ohio’s has hardly risen at all and is now four years less than New York’s.

Summing up. Life expectancy ought to be a major political issue. Americans aren’t living as long as citizens of other rich countries, but that isn’t due to some unforeseeable act of God. We’re doing it to ourselves through our political choices.

By weeklysift | Tagged | Comments (23)

How I evaluate sources

May 22, 2023 – 9:16 am

I want to keep challenging my biases by reading posts I disagree with.
But I also don’t want to waste my time on nonsense or propaganda.

This week, one of my social-media friends posted a link from a blog I’d never heard of. This particular article claimed Russia is winning its war against Ukraine, and criticized a Western leader for claiming that Russia would lose a war against all of NATO. These observations seemed unlikely to me, but I try not to write blogs off just because I disagree with them. (That’s a good way to trap yourself in an ideological silo.) So I asked myself: What is this blog? Is it a reliable source?

These questions come up all the time, and by now I have a fairly standard technique for answering them. After I finished my assessment — I eventually decided it wasn’t a reliable source — I realized I’d never described the technique to Sift readers. Arguably, the technique is more valuable than the conclusions I draw with it.

The first step is obvious: Read the article in question. If, in addition to the parts I initially disagreed with, it references long-debunked claims and conspiracy theories without acknowledging the arguments that have been made against them, I feel comfortable trashing the article without wasting any more of my time. For example, if you say that voting machines stole the 2020 election from Trump, you need to explain all the states where hand recounts came to the same totals, within the usual error bands of recounts. If you have a believable explanation of that — I can’t imagine what it could be right now, but never mind — I might pay attention.

But suppose the article isn’t that obviously bad. This particular one wasn’t: Its assessment of the Ukraine War was attributed to Polish generals I didn’t recognize. So maybe the author is plugged in to sources I don’t know about, and maybe those sources know something.

So the next step is to look at the front page of the blog or news source. A Japanese proverb says: “When the character of a man is not clear to you, look at his friends.” The other articles the source is promoting are the “friends” of the article I’m evaluating. If a bunch of them are obviously nonsense, it’s not a big leap to assume the article I’m assessing is nonsense too.

The day I was looking at it, this blog was still just barely making the cut. (Today it might not. It’s full of glowing assessments of the Durham report, buying into the idea that the whole Trump/Russia thing was a hoax. More about that topic in today’s other featured post.) It had a bunch of other articles about Ukraine being in trouble, which could be legit if the article I was assessing was legit.

The final step is to look back in time. In general, well-constructed propaganda can look pretty good in the moment, but it usually doesn’t age well. The same is true of delusional points of view. In the moment, people can convince themselves of all kinds of things and be pretty persuasive about it.

The Iraq invasion is a good example. Back in 2002-2003, it was far from obvious what a stupid idea this was. Maybe Saddam did have weapons of mass destruction. Maybe the Bush administration really did know things we didn’t. Maybe Iraq was eager for democracy, and even if not, Saddam was such an awful ruler that getting rid of him would create a lot of room for improvement. When Saddam’s army collapsed so quickly, a lot of people wondered why we hadn’t invaded a long time ago. Sure, some contemporary observers saw the folly from the beginning, but a lot didn’t, and not all of them were stupid or crazy.

With twenty years of hindsight, though, hardly anybody defends the invasion any more. Time tends to clear the fog that blinds us to contemporary events.

A simpler and more recent example: A lot of pundits predicted last year (after the Dobbs decision) that voters would forget about abortion by the time the fall elections rolled around. At the time, that claim was hard to assess, but now we can clearly see that it was wrong.

So anyway, if today’s front page is hard to assess, look back six months or a year. That might be easier.

But when you do that, be careful. Because simply finding something the source got wrong isn’t discrediting in itself. We all get stuff wrong, so you will find an excuse to write the source off, if that’s what you’re looking for. If you’re trying to make an honest assessment, though, the process is a little more complicated. Finding a mistake is just the first step.

The point isn’t just to find things the source got wrong, but to see how they responded as events went some other way. What I hope to find is a reaction like Paul Krugman’s: In 2021, Krugman was wrong about the risks of inflation, and then he was slow to recognize how big a problem inflation was becoming. (If you’re looking for an excuse to write Paul off, there it is.) But that mistake bothered him as much as it bothered anyone else. He has written several columns since trying to figure out what led him astray.

In early 2021 there was an intense debate among economists about the likely consequences of the American Rescue Plan, the $1.9 trillion package enacted by a new Democratic president and a (barely) Democratic Congress. Some warned that the package would be dangerously inflationary; others were fairly relaxed. I was Team Relaxed. As it turned out, of course, that was a very bad call.

But what, exactly, did I get wrong?

The Ukraine War itself is a good topic to examine, because at the beginning, just about everybody expected Ukraine’s defenses to collapse in a few weeks. A credible military blog might have made that mistake, but then they should have spent the summer reevaluating. It’s possible that by now they might have come back around to the idea that Ukraine will lose (or not). But if they’ve been holding steady on the Ukraine-is-about-to-collapse narrative all year, they’re not credible.

So Krugman is the gold standard, but I’ll give a silver medal to anybody whose mistake made them realize they don’t understand the subject they got wrong, and who subsequently shifted their attention elsewhere. Or maybe they reevaluated and downgraded the sources they got their wrong opinion from.

So, for example, picture a Republican who took Trump’s claims of election fraud seriously at first, but then stopped repeating them when no supporting evidence emerged. They may not ever have acknowledged their mistake in so many words, but they’ve taken steps not to keep doing it, i.e., not just blindly repeating whatever Trump says any more. I’m not going to write that source off forever. On the other hand, if they’re still pushing that stolen-election nonsense today, they’re not worth my time.

So anyway, when I looked back on the past record of the blog in question, I found claims that Trump was framed in both his impeachments, the FBI framed Michael Flynn, the Russians didn’t interfere in the 2016 election, Covid was exaggerated by the Deep State, Dominion voting machines stole the 2020 election from Trump, it was Seth Rich (and not the Russians) who leaked the Clinton campaign emails, Russia has been winning the Ukraine War from the very beginning, and many others.

In short, it was down-the-line pro-Russia pro-Trump stuff, with no acknowledgment that any of those claims hadn’t panned out. So I’m not taking the new claims seriously either.

So that’s the technique: Read the article, then look at the front page, then look back until you find a mistake and see how they handled it.

By weeklysift | Also posted in Uncategorized | Comments (52)

Summing Up at the End of the Trump/Russia Investigations

May 22, 2023 – 8:50 am

The two questions I had at the beginning remain unanswered.

Around the time Trump fired FBI Director James Comey, and Robert Mueller was being appointed special counsel, I formulated the two simple questions I hoped Mueller would answer:

Through all the investigations that followed, including the two-volume Mueller Report, the five-volume report of the bipartisan Senate Intelligence Committee, and the just-released 300-page report of the Durham investigation of the investigators, those two questions remain unanswered: Why all the connections? Why all the lies?

Those questions continue to be the lens through which I view this topic and assess the various reports, which otherwise might drown a reader in disorganized and distracting details.

Obstruction. Mueller and the Senate at least helped us understand why they couldn’t provide answers: Trump obstructed their investigations. Volume 2 of the Mueller report examined ten acts that might be charged as obstruction of justice, and concluded that the predicates for an indictment of Trump existed in seven of them. Mueller’s report is dense and legalistic, but a more readable narration of the obstruction is in Andrew Weissman’s book Where Law Ends: Inside the Mueller investigation.

Based on those reports, here’s how I describe what happened: Russia interfered in the 2016 election in two ways, by attempting to influence voters directly via fake posts and fake news articles distributed through social media, and by hacking DNC and Clinton campaign emails, which were given to WikiLeaks to release any time the news cycle was trending in Clinton’s favor (like after Trump’s grab-them-by-the-pussy tape went viral). The social media campaign may have been targeted via internal Trump campaign polling data, which showed the best areas and demographic groups to try to influence.

Both Mueller and the Senate made clear that this Russian interference really happened, and that the Trump campaign knew about it and welcomed it. Neither presented proof that the Trump campaign conspired directly in the crimes the Russians carried out. So no one in the campaign could be charged with planning the DNC hack or directing the Russian social media campaign. But neither report “exonerated” Trump, as he has so often claimed.

The Trump campaign was linked to the two Russian efforts through two men:

Both Manafort and Stone were convicted of crimes not directly related to Russia, and were offered plea deals to cooperate with the Mueller investigation. Stone refused outright, while Manafort appeared to agree, but then lied to investigators. After losing the 2020 election but before leaving office, Trump rewarded both men’s loyalty by pardoning them.

Nothing suspicious about that. Nothing at all.

Distraction. The main thrust of the Durham investigation was that the FBI should not have tried so hard to answer my two questions. Durham pursued every manner of conspiracy theory about the FBI’s alleged bias against Trump, and came up with virtually nothing, beyond some leaked straw that Trump and Fox News could regularly spin into political and ratings gold: For years, Trump’s followers were encouraged and entertained by reports that Durham was blowing the lid off “the crime of the century“, and hints that James Comey, Hillary Clinton, and other high-ranking officials from the Obama administration would go to jail.

In fact, Durham came up with very little. An FBI lawyer pleaded guilty to altering an email to support a request to wiretap a former Trump campaign aide. (Something I wonder: If you did an in-depth investigation of any FBI investigation, would you find similar fudging?) For this crime-of-the-century he was sentenced to probation. Durham took two other cases to trial with little evidence — he charged Steele dossier source Igor Danchenko and Clinton campaign lawyer Michael Sussman with lying to the FBI — and was rebuffed when unanimous juries quickly found both defendants not guilty.

Despite the not-guilty verdicts, Durham’s report repeats his discredited assertions, excusing his failure to produce compelling evidence by attacking the jurors:

[J]uries can bring strongly held views to the courtroom in criminal trials involving political subject matters, and those views can, in turn, affect the likelihood of obtaining a conviction, separate and apart from the strength of the actual evidence and despite a court’s best efforts to empanel a fair and impartial jury.

This is a truly incredible statement, given the unanimous not-guilty verdicts. If a jury simply refused to convict, we might imagine one or two holdouts whose anti-Trump bias made them impossible to convince. But every juror in two trials brought “strongly held [anti-Trump] views to the courtroom”? Really?

Nonetheless, it’s important not to get lost in the weeds of the Durham investigation, because distraction was its entire reason to exist. Why did Trump’s people lie about their connections to Russia? Durham has nothing to say about that question, beyond arguing that it should never have been asked in the first place.

Speculation. In the absence of definitive evidence, we are left to speculate. The most obvious answers to my two questions are:

  • Trump officials had so many contacts with Russia because they were participating in an illegal conspiracy.
  • They lied about those contacts to cover up that conspiracy.

Due to Trump’s obstruction (and Durham’s complete lack of interest in the questions) those speculations can’t be supported or refuted by clear evidence. But it’s worth noting that these are the only credible answers ever proposed. Despite voluminous comments intended to obstruct, obfuscate, distract, and intimidate, Trump and his people have never offered an alternative explanation.

By weeklysift | Tagged , | Comments (6)

Normalizing Trump normalizes political violence

May 15, 2023 – 11:14 am

In search of ratings, CNN is enabling the next Trump coup.

Wednesday, CNN aired a townhall meeting in which an audience of New Hampshire Trump supporters got to address questions to their hero/demigod. The outcome was easily predictable: Trump spewed one lie after another, while he ignored and insulted the “nasty” woman the network had assigned to moderate. Meanwhile, the crowd cheered.

Disinformation. In the post-event discussion, Jake Tapper summed up:

We don’t have enough time to fact-check every lie he told.

In a nutshell, that’s why fact-checking fails against a determined liar who is not shamed by having his lies exposed: Outrageous falsehoods can be entertaining, but reasserting the truth is boring. If he just keeps going, who’s going to stick around to hear you correct it all? And even if some do, the bell can’t be unrung; the people who heard the lie can’t unhear it. (For what it’s worth, you can read fact-checks of the evening here, here, and here.)

So the net result of the evening was to promote disinformation. People who watched are probably less well informed now than before they tuned in. When it scheduled the town hall, CNN had to know that would happen.

The justification given by CNN boss Chris Licht was that the broadcast “made a lot of news”, which he described as “our job”. “America was served very well.”

I’ll let The Atlantic’s Tom Nichols answer that one:

To be clear, I am not taking issue with CNN offering Trump time on the network. Trump is far and away the front-runner for the GOP nomination. Neither CNN nor any other network can refuse to cover him; as I’ve said, it would be a disservice to let him spread his toxic slurry out of the public eye. But “covering” Trump does not mean packing an audience with supporters and then setting the resolutely misogynist Trump against a young female reporter in a situation that practically could have been designed by the Trump campaign itself.

January 6. But I want to focus on something else about the event: Trump doubled down on his endorsement of the violence on January 6.

It started right away, when moderator Kaitlin Collins asked if (should he become president again) he intended to pardon those convicted of crimes committed during the January 6 riot. Trump admitted that he might not pardon all of them, because “a couple of them, probably, they got out of control”. But most of them did “nothing”, and are “living in Hell” now.

They’re policemen, and they’re firemen, and they’re soldiers, and they’re carpenters and electricians and they’re great people. Many of them are just great people.

The rioters were prosecuted for specific crimes (including assaulting policemen), and a jury of their peers unanimously found them guilty beyond a reasonable doubt. But that doesn’t matter because

In Washington, D.C., you cannot get a fair trial, you cannot. Just like in New York City, you can’t get a fair trial either.

He doesn’t explain why that is, but apparently he believes you can just write off any verdict from a DC or NYC jury. Maybe those people don’t count as Americans, or even as people. He doesn’t say.

Collins zeroed in on the Proud Boys, who were just convicted (again: unanimously, beyond a reasonable doubt, by a jury) of seditious conspiracy. Think about what that means: Seditious conspiracy is one step short of treason. They didn’t just throw a tantrum because their candidate lost the election; they actively conspired against the United States of America. But Trump might be OK with that.

I don’t know. I’ll have to look at their case.

He described January 6 as a “beautiful day” and said that his supporters “had love in their hearts”. When Collins pointed out his supporters injured 140 police officers, Trump offered no sympathy, but instead focused on one of the rioters, Ashli Babbitt, who was killed while trying to break down the only remaining door protecting members of Congress from the violent mob.

There was no reason to shoot her at blank range. Cold, blank range, they shot her. And she was a good person. She was a patriot.

She was shot by a “thug”, i.e. Lt. Michael Byrd, a Black police officer with 28 years of experience, who has been hounded by Trump’s supporters ever since.

For Byrd, who is Black, the incident turned his life upside down. He has been in hiding for months after he received a flood of death threats and racist attacks that started when his name leaked onto right-wing websites.

Months later, Byrd was interviewed by Lester Holt and had the audacity to defend his actions. Trump characterized this as “he went on television to brag about the fact that he killed her.” (You can watch the interview and judge for yourself.)

In short, Trump paints a picture of January 6 in which the rioters are the heroes and the police are the villains.

But what about his own vice president, Mike Pence? The mob chanted “Hang Mike Pence”, and his Secret Service protectors, fearing for their lives, made good-bye calls to loved ones. But Trump knows better:

I don’t think he was in any danger.

And he owes Pence no apology

because he did something wrong. He should have put the votes back to the state legislatures and I think we would have had a different outcome. I really do.

Pence deserved to be threatened, in other words, because he refused to play his part in the overthrow of American democracy.

How democracy survived Trump’s first term. In other reporting this week, Rolling Stone revealed some of Trump’s plans for his second administration: He wants to bring back Michael Flynn, who advocated declaring martial law to hang onto power. Also Jeffrey Clark, who pushed for the Justice Department to lie to the State of Georgia about “various irregularities in the 2020 election” to justify the legislature replacing the legitimate members of the Electoral College with Trump supporters.

Both efforts were blocked by people within the government who were still loyal to the Constitution.

In a nutshell, that’s the story of Trump’s attempt to hang on to the presidency after losing the election by 7 million votes: Plots to overturn the election didn’t end because Trump decided he wouldn’t go that far. They ended when people inside his administration refused to participate.

We still have no idea how far Trump himself was willing to go to stay in power.

What we do know is that he wants his second administration to pick up where the first one left off. His first administration began with appointees who were typical conservative Republicans, like Jeff Sessions and John Kelly. They saw the world through right-wing lenses, but they were loyal to America as they understood it.

As the term went on, more and more of those people were kicked out in favor of people who were loyal to Trump first and America a distant second. Trump’s coup attempt failed because he hadn’t completed his purge of American loyalists.

What becomes clear as you listen to Trump is that he understands that mistake now. So his second term will begin with the appointment of true Trumpists to all major positions. When it comes time to throttle democracy again, no one will say no to him.

What are we normalizing? CNN’s critics talk about the problem of “normalizing” Trump, i.e. of treating him as we would any other front-runner for his party’s presidential nomination.

Different people use that term for different reasons, because Trump is abnormal in all sorts of ways. No impeached president, much less the only president to be impeached twice, has ever been nominated again. No candidate for the presidency has ever brushed off a jury verdict holding him liable for sexual assault. It’s been a century since a candidate ran for the presidency while under indictment or in prison. No major American politician of any sort has kept up such a steady stream of lies. No presidential candidate since George Wallace has been so blatantly racist.

Those — and many others — are plausible reasons to refuse to give Trump a platform, much less construct such a favorable platform as CNN offered Trump. But they all pale before the most serious reason to treat him differently: He’s running to finish his coup.

The debate about whether to end democracy cannot be treated as a normal democratic issue. We can’t have a “reasonable” discussion about whether an attempt to overturn an election by violence is or isn’t legitimate.

Trump has very recently threatened to unleash political violence again. He warned of “death and destruction” if he were indicted, and mocked pleas for his supporters to stay peaceful.

OUR COUNTRY IS BEING DESTROYED, AS THEY TELL US TO BE PEACEFUL!

Does anyone doubt that he will incite violence again, if he thinks it will help him regain the White House in 2024?

That’s the kind of “issue” that should never be normalized. No candidate of any party should be given a platform to make promises to past violent supporters, and to offer implicit concessions to people who do violence for him in the future.

That needs to be a red line. Wednesday, CNN crossed it.

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