Tag Archives: 2024 election

A Big Week in the Trump Trials

February 19, 2024 – 9:26 am

This was a week where you couldn’t tell the players without a program. Important things were happening in multiple Trump trials at once — a phenomenon I think we’ll see more of in the months ahead. But before going into the details, I want to talk about the general phenomenon: Why does Donald Trump keep losing in court?

Why Trump keeps losing. Friday, New York Judge Arthur Engoron issued his decision in the New York civil fraud case against Donald Trump, his adult sons, several Trump Organization companies, and two major Trump Organization executives: a $355 million “disgorgement” penalty, plus interest.

This is a huge amount of money, and it is just the latest of a series of Trump losses in court: the two E. J. Carroll lawsuits for defamation and sexual assault, which resulted in $88 million in damages; the criminal tax-fraud case against the Trump Organization ($1.6 million from the company and jail time for ex-CFO Allen Weisselberg); the Trump University civil fraud suit (settled out of court for $25 million), the Trump Foundation lawsuit ($2 million and dissolution of the foundation), and 61 of the 62 suits Trump filed in his attempt to overturn his loss in the 2020 election. (The one he won affected a tiny number of votes and had no effect on the election’s outcome.)

Trump, of course, paints this as years of harassment by a corrupt legal system, but I learn a much simpler lesson: Bullshitters don’t do well in court. A talented bullshitter can succeed in politics and/or business, but judges don’t have to put up with bullshit, and most of them won’t.

When he’s been caught doing something wrong, Trump’s usual damage-control technique is to spin out several mutually inconsistent stories until he sees which one is catching on. (January 6 is a great example: At first, the rioters were antifa rather than his supporters. Then they were his supporters, but they were conducting a mostly peaceful protest. Or maybe it was a riot, but he didn’t incite it. And now we’ve reached the point where it was a riot and they were his supporters, but they are patriots being railroaded by the same corrupt legal system that is railroading him.) His supporters latch on to whichever explanation rings true to them, ignoring the fact the Trump himself may have moved on to a different story.

He tried something similar in the NY civil-fraud trial: He claimed his financial statements weren’t false. Or maybe they were false, but they had a disclaimer. Besides, accuracy was the accountants’ responsibility, not Trump’s. In real estate, everybody’s financial statements are false. And the bankers are sophisticated people who should have known not to believe Trump’s claims. Pick whichever answer appeals you.

Trump’s string of losses demonstrates that his tactic doesn’t work in court, where the legal process is designed to reach a single narrative of events. Shifting back and forth from one excuse to another will just annoy a judge, who will communicate that annoyance to a jury, if there is one.

Another thing that doesn’t work in court is restarting arguments you’ve already lost. Trump’s lawyers keep repeating defenses that Engoron had already ruled against. (Like: The loans were repaid, so there was no fraud. More about this below.) That kind of doggedness can pay off in politics, because the public easily forgets how some point was debunked. But in court it just pisses a judge off.

The $355 million civil fraud decision. Here’s Judge Engoron’s 92-page decision. Or you can read the NYT-annotated version.

The judge also added interest to the penalty, bringing the total to around $450 million. He denied the state’s request to ban Trump permanently from doing business in New York, and instead banned him for only three years, with sons Eric and Don Jr. banned for two. Engoron also decided not to revoke the Trump Organization’s certification to do business in New York (part of his earlier summary judgment that an appeals court had put a stay on), which would have effectively dissolved the company, since it is incorporated in New York.

The decision is dull reading, because Engoron goes through the witnesses one-by-one, summarizing what each one said and why it was believable, unbelievable, or irrelevant. Then he goes through Trump’s fraudulently valued properties one-by-one and lays out the evidence of fraud. This is important material to record for Trump’s inevitable appeal (since the appellate court won’t hold its own trial), but it can be tiresome to plow through.

Here are a few simple things I gleaned from the decision:

First, the shape of the fraud: When The Trump Organization was looking for loans during the 2010s, Deutsche Bank’s Private Wealth Management Division was the only bank that wanted to do business with them. In a series of deals, it offered two loan possibilities: a loan secured only by the real estate collateral, or a loan secured by the collateral plus Trump’s personal guarantee. The second loan had a significantly lower interest rate, and it was based on assertions about Trump’s net worth and available cash. Trump was then obligated to give Deutsche Bank annual statements of financial condition (SFCs) verifying that his net worth and available cash were still above certain thresholds.

Those SFCs are the fraudulent business records, and they were off by a lot. One type of fraud was to value Trump’s properties “as if” rather than “as is”. So for example, Mar-a-Lago is worth a lot more if it can be sold as a private residence, but its deed restricts it to being a social club. (Trump got a lower real-estate tax rate by agreeing to that restriction.) The SFCs list the value as if that restriction could be made to go away. Similar things happen all over the Trump empire: One property is valued as if Trump had permission to build 2500 residences, when in fact he only had permission to build 500. And so on.

Second, where did the $355 million figure come from? Engoron didn’t just pull it out of a hat, and punitive damages play no role. It is a disgorgement of ill-gotten gains. Basically, it’s the interest Trump saved by making the fraudulent guarantees, plus the capital gain from the sale of the Old Post Office hotel near the White House (which Trump would not have been able to buy without the fraudulently obtained loan). Eric and Don Jr. each give up $4 million, because that was their share of the Old Post Office gain.

Third, the fact that the penalty is a disgorgement is why Trump’s there-is-no-victim rhetoric is off-base. The point here isn’t to compensate a victim, it’s to protect “the integrity of the marketplace” by punishing fraud. Engoron quotes a precedent:

Disgorgement is distinct from the remedy of restitution because it focuses on the gain to the wrongdoer as opposed to the loss to the victim . Thus, disgorgement aims to deter wrongdoing by preventing the wrongdoer from retaining ill-gotten gains from fraudulent conduct.

By asking for the personal guarantee and demanding evidence of the wealth to back it up, Deutsche Bank was trying to protect itself against a possible downturn in real estate in general and in Trump’s fortunes in particular. As it happens, those risks didn’t manifest and the loans were repaid. But Engoron observes: “The next group of lenders to receive bogus statements might not be so lucky.”

This kind of disgorgement happens all the time in insider-trading cases: The SEC makes the traders give up their gains, even if it’s impossible to figure out exactly who they cheated. And the purpose is the same: to protect the integrity of the market by preventing cheaters from prospering.

Finally, I want to turn around one standard conservative criticism, which you’ll hear whenever Biden tries to forgive college loan debt: “But what about the people who follow the rules, the ones who took their debts seriously and paid them off? What do you say to them?”

In this case, what about the people who have been denied loans (or had to pay a higher sub-prime interest rate) because they filled out their applications honestly? Or people who can’t afford to pay an accountant to lie for them, the way Trump can? What do Trump’s defenders say to them?

The hush-money criminal case will go to trial March 25. This is the red-headed stepchild of the Trump indictments, but it looks like it will be the first one to go to trial. Slate’s Robert Katzberg expresses what I think everybody is thinking:

While the conduct charged is, no doubt, criminal, it feels a bit like prosecuting John Gotti for shoplifting. The Bragg prosecution is also clearly the weakest of the four outstanding indictments from an evidentiary perspective, especially when compared to the D.C. slam-dunk. … In an ideal world the D.C. prosecution would be first, allowing the world to see just how close we came to having the 2020 election overturned and the frightening degree to which the former president is a threat to our democracy. However necessary and appropriate that would have been, it is not where we are now. The Bragg case, while hardly the most desirable opening act, at least gets the show on the road.

This case stems from Trump paying off porn star Stormy Daniels to keep their affair secret during the 2016 presidential campaign. But the sex itself isn’t a crime and the fact of the payoff isn’t what’s being prosecuted: It’s the lengths Trump went to in order to hide the payoff from voters in 2016. He had Michael Cohen pay Daniels. Then the Trump Organization created a false paper trail to reimburse Cohen, and recorded the reimbursement as a business expense when it was actually a campaign expense. So the charge is falsification of business records.

The Georgia case. The RICO case against Trump and his election-stealing co-conspirators is currently on hold while the judge decides whether DA Fani Willis should be disqualified.

The issue is her romantic entanglement with another prosecutor on the case, who she hired, and the claim that he kicked back some of the money she is paying him by spending it on her during their affair, which they both claim is now over. (They both claim she paid her own way by reimbursing him in cash, leaving no records — which is a sensible thing to do if you hope to keep the affair secret.)

The stakes in this are huge, because if Willis is disqualified, quite possibly nobody else picks the case up and Trump walks. Certainly the case won’t be tried before the election.

On the other hand, that outcome seems unlikely to a number of observers, for this reason: Willis’ affair is certainly salacious and embarrassing, and it may even be unethical enough to result in some kind of discipline against Willis outside this case. But disqualifying her from this case requires showing prejudice against these defendants. And nothing they’ve put forward so far proves that.

As a matter of both common sense and Georgia law, a prosecutor is disqualified from a case due to a “conflict of interest” only when the prosecutor’s conflicting loyalties could prejudice the defendant leading, for example, to an improper conviction. None of the factual allegations made in the Roman motion have a basis in law for the idea that such prejudice could exist here – as it might where a law enforcement agent is involved with a witness, or a defense lawyer with a judge. We might question Willis’s judgment in hiring Wade and the pair’s other alleged conduct, but under Georgia law that relationship and their alleged behavior do not impact her or his ability to continue on the case.

My social media is full of a point that may not be legally relevant, but packs a political punch:

So Clarence Thomas can accept hundreds of thousands in gifts but Fani Willis can’t go dutch on dinner?

Jack Smith and presidential immunity. The question of whether former presidents are immune from prosecution for anything they did in office is now with the Supreme Court. Both Judge Chutkan and the DC Court of Appeals have rejected Trump’s immunity claim, which appears to be far-fetched and intended as a delaying tactic.

So far the delaying strategy is working: The trial in this case was originally supposed to start March 4.

Other than Trump and his lawyers, I haven’t heard anyone predict that the Supreme Court will reverse the lower courts’ rulings and stop Jack Smith’s January 6 case in its tracks. However, it remains to be seen to what extent Trump allies on the Court will cooperate with his strategy to delay the case past Election Day.

(As I’ve commented before, Trump’s delay strategy is essentially an admission of guilt. An innocent man who believed he was being prosecuted purely for political reasons would want the case to be tried as soon as possible, so that he could get the vindication of a jury’s not-guilty verdict. But Trump knows that a jury that sees the evidence will convict him, so his best hope is to get reelected and then instruct his attorney general to drop the case.)

The key documents have already been filed with the Court: Trump’s application for a stay that will continue delaying the trial, Jack Smith’s response, and Trump’s reply to Smith. The arguments Trump’s lawyers are making are the same ones the lower courts rejected, and amount to “No, they’re wrong.” (BTW: I love that this case is Trump v the United States.)

The Court has a number of options, which Joyce Vance outlines, ranging from refusing to hear the appeal and letting the case continue as soon as possible, to scheduling lengthy briefings and not ruling on the case soon enough for the trial to be heard before the election.

Disqualification. We’re still waiting for the Supreme Court to rule on whether the 14th Amendment’s disqualification clause applies to Trump (because of his role in the January 6 insurrection), and whether states (like Colorado) can enforce that disqualification from public office by refusing to list him on presidential ballots.

The judges sounded skeptical during the oral arguments, so it would be a shock if they ruled Trump ineligible. But it will be a challenge to square a Trump-is-eligible ruling with the conservative justices’ originalist philosophies. The Court works on its own clock, so a ruling could come tomorrow, at the end of the term in June, or any time in between.

By weeklysift | Posted in Articles | Also tagged | Comments (12)

About Biden’s Age and Memory

February 12, 2024 – 9:24 am

Don’t be stampeded into freaking out.

The Hur Report. Thursday, Special Counsel Robert Hur released a 388-page document reporting on his investigation into classified documents President Biden returned to the government after they were found among his papers at the University of Delaware and in his home. The conclusion of that report is in its first line:

We conclude that no criminal charges are warranted in this matter. We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president.

In a report that followed Department of Justice traditions and guidelines, that would be the headline: We looked for evidence of prosecutable crimes and didn’t find any. For comparison, the special prosecutor tasked with investigating classified documents found in former Vice President Pence’s home also decided (last June) that no charges were warranted. The NBC News headline was “DOJ closes Pence classified documents investigation with no charges“.

The second paragraph of such an article would have quoted Hur outlining the difference between this case and former President Trump’s classified documents case:

It is not our role to assess the criminal charges pending against Mr. Trump, but several material distinctions between Mr. Trump’s case and Mr. Biden’s are clear. Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts.

Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it. In contrast, Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview. and in other ways cooperated with the investigation.

But the Hur report was covered very differently, because in addition to summarizing his investigation, Hur also gratuitously speculated on how Biden would defend himself at a trial.

In addition to this shortage of evidence, there are other innocent explanations for the documents that we cannot refute. When Mr. Biden told his ghostwriter he “just found all the classified stuff downstairs,” he could have been referring to something other than the Afghanistan documents, and our report discusses these possibilities in detail.

We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.

Throughout, the document casts inappropriate and unnecessary aspersions on Biden’s memory and mental processes.

Mr. Biden’s memory also appeared to have significant limitations-both at the time he spoke to [ghostwriter Mark] Zwonitzer in 2017, as evidenced by their recorded conversations, and today, as evidenced by his recorded interview with our office. Mr. Biden’s recorded conversations with Zwonitzer from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries.

Thursday night, MSNBC’s Chris Hayes commented on how needlessly editorialized this was: Painfully? Who was supposed to be in pain? Ordinary human difficulties — struggling to interpret handwritten notes from years ago, or speaking slowly when you are trying to get something exactly right — are cast in the light of disability. The report then continues:

In his interview with our office, Mr. Biden’s memory was worse. He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (“if it was 2013 – when did I stop being Vice President?”), and forgetting on the second day of the interview when his term began (“in 2009, am I still Vice President?”). He did not remember, even within several years, when his son Beau died.

This, again, paints something perfectly ordinary in a negative light: There’s no indication that Biden has really forgotten “when he was vice president” or “when his son Beau died”, just that he sometimes attaches the wrong year-numbers to these memories. This happens to me (and to Paul Krugman) all the time. A frequent exchange with my wife is “When did we move here? 2018? 2019?” And then we work it out because she was turning 65 and wanted to start Medicare in Massachusetts. Same thing with my father’s death: I know his birth year and that he lived to be 90; that’s the only way I remember what year he died. But I have not at all forgotten “when my father died”; I can tell you precisely where I was and what I was doing.

In general, I remember the years personal events happened only if I’ve had to list them on a resume. (Krugman gives the example of recalling the year his mother died: He figures it out by remembering when he left Princeton for CUNY.) Otherwise, I have to think about it. That’s been true all my life and has nothing to do with aging.

If you can’t identify with those examples because your memory works differently, let me try an analogy: It’s like the difference between forgetting the dates of the Civil War (1861-1865) and forgetting the Civil War. (“Like, didn’t a bunch of states secede once or something?”)

It’s hard to argue with Krugman’s conclusion that the report was written by somebody who knows that Republicans want to make a political issue out of Biden’s mental acuity and wants to help them do it. Hur’s legitimate conclusions as an investigator are of no use in this regard, so he contributes in other ways.

Contrast Hur’s behavior with Jack Smith’s. Smith has played it by the book: He has investigated alleged crimes, and when he has found sufficient evidence, he has presented that evidence in indictments. Does he know other embarrassing details about Donald Trump’s life? Quite possibly. But if they’re irrelevant to the crimes he’s indicting, he doesn’t talk about them.

For example, back in December there were reports in the press that Trump literally stinks “of armpits, ketchup, and butt”. Has Smith’s investigation turned up anything related to that? He hasn’t seen fit to tell us, because reeking is not an indictable crime.

There’s a reason the Justice Department has standards about this kind of thing. Criminal investigation is one of the most invasive things our Constitution allows the government to do. So unless the investigation turns up something actually criminal, investigators should remain circumspect about what they think, and certainly should not use the authority of their investigation to defame or denigrate people they are not prosecuting.

The Egypt/Mexico mistake. Biden was understandably angry with Hur’s report, and held a press conference to say so. Unfortunately, as he was walking out of the room, he took one more question about an unrelated subject: his efforts to negotiate a release of the hostages Hamas is holding. Responding off-the-cuff, he said this:

I’m of the view, as you know, that the conduct of the response in Gaza — in the Gaza Strip has been over the top.  I think that — as you know, initially, the President of Mexico [Egypt], El-Sisi, did not want to open up the gate to allow humanitarian material to get in.  I talked to him.  I convinced him to open the gate.

I talked to Bibi to open the gate on the Israeli side.  I’ve been pushing really hard — really hard to get humanitarian assistance into Gaza.  There are a lot of innocent people who are starving, a lot of innocent people who are in trouble and dying, and it’s got to stop.

OK, I’m biased to like this statement, because Biden’s views on the Gaza War have shifted in the same direction as mine. (See what I wrote last week.) But there is that mistake: He said “Mexico” when he meant “Egypt”. (Notice: He got the name of Egypt’s president right. So he clearly knew what country he was talking about.)

People have tried to draw a lot of conclusions from this mistake, but again, I do stuff like that all the time. So does Trump. In this clip, for example, he says, “We’re going to defund our freedoms.” (Presumably he meant “defend”.) In this one, he recalls (falsely) what he did after the World Trade Center was attacked on seven-eleven. More recently, he said “Nikki Haley” when he meant “Nancy Pelosi”.

I think most people do stuff like this from time to time: You reach into your mental bag of words in a category, and you come out with the wrong one. (In Biden’s case, the category is “countries on the other side of some significant border”. In Trump’s it’s “women who get in my way.”) Speaker Mike Johnson made a comparable mistake on Meet the Press a week ago yesterday. “We passed the support for Iran many months ago.” (He meant Israel, another Middle Eastern country beginning with I.) Johnson is 52.

Aphasia vs. dementia. Obviously, this kind of mistake happens more often as people get older. I have a lot of experience with this phenomenon, because in his later years, my Dad developed a far worse case of aphasia than anything Biden or Trump have demonstrated. Eventually, it reached the point where he called every meal “lunch”.

But it’s important not to confuse aphasia (problems recalling words) with dementia (problems grasping the situation). For example, Dad saying “lunch” did not reflect any confusion about what time of day it was or when he had eaten last. “Lunch” was just the easiest meal-word to find. (On a road trip, we went to “lunch” first thing in the morning, before getting on the highway. Dad ordered breakfast.)

You might worry that dementia is a natural progression from aphasia, but that’s not how it works. There’s a relationship, but the causality runs in the other direction: Problems in your thinking will lead you to use inappropriate words. But in general, pulling the wrong word out of memory (or no word at all) doesn’t screw up your thinking. So Dad’s aphasia kept getting worse, but he knew who he was, where he was, what he was doing, and who I was all the way up to his last days. (I remember one extreme example: Dad wanted a tool for some home maintenance project he was doing. He couldn’t come up with the name of the tool, the store he wanted to go to, or the street it was on. So he told me to get in the car, and then gave instructions — turn left, turn right — taking us directly to the paint store. He got the tool, we drove home, and he continued his project.)

So I cringed when I heard Biden say “Mexico”, but only because I knew how people would react. His misstatement did not at all cause me to worry that he did not grasp the world situation, or that he would start using the powers of the presidency in some delusional way.

Trump, on the other hand, has lived in a delusional world for decades. In his world, he has always been right, people oppose him because of some inexplicable hatred unrelated to his behavior, he has a mystical “strength” that causes the world to warp around him, his personal charm changes the behavior of dictators, and his wealth comes from mastering “the art of the deal” rather than via a vast inheritance and a lifetime of fraud.

I do not worry that Biden will begin basing his presidential decisions on the kinds of crazy things Trump says all the time: He won’t start pushing quack cures like ivermectin and hydroxychloroquine, or suggest that doctors look into injecting bleach. He won’t “fall in love” with a psychopathic killer like Kim Jong Un, or decide that Vladimir Putin is more trustworthy than the FBI. He won’t try to change the direction of a hurricane with his sharpie. He won’t claim that windmills kill whales. And he won’t encourage Russia to attack our NATO allies.

Biden will undoubtedly continue to say the wrong words now and then. But I can live with that, because I trust him (and not Trump) to stay rooted in the real world.

If things were worse than that, how would we know? There would be defectors from inside the Biden administration. Unlike Trump, Biden isn’t the focus of a personality cult. People who work with him may like Joe Biden, and they may feel a certain loyalty to him, but they are primarily Americans and Democrats rather than Biden-worshippers. If something were wrong with him that endangered the country and threatened the goals of the Democratic Party, at least a few insiders would come out and say so. Cabinet secretaries, speech writers, White House aides … they’d hate doing it, but at least a few of them would: “It’s worse than it looks,” they’d say. “We have to do something.”

But look around. That’s not happening. The people disparaging Biden’s competence are precisely the people who don’t work with him, the people who wouldn’t know. Even Republicans, like Kevin McCarthy, come out of their dealings with Biden saying that he’s sharper than you think.

What should Biden and the Democrats do? Immediately: nothing.

These last few days, pundits of all sorts have been trying to stampede Biden into resigning or Democrats into abandoning him. This is crazy: Biden has been a very good president and there’s no reason to think he won’t have an equally good second term, despite the unforgivable sin of saying “Mexico” when he meant “Egypt”.

On the flip side of that panic, it’s tempting to want to make some dramatic gesture to prove how sharp Biden is. But that’s likely to be counterproductive in the same way that Richard Nixon saying “I am not a crook” was counterproductive. “I don’t have dementia” is exactly the kind of thing somebody with dementia would say.

Immediately, Biden should let the wave of hysteria pass. Get on with governing. Give a good State of the Union address. Keep working on a truce in Gaza. An oval office message about something else entirely — the importance of not letting Ukraine fall to Russia, for example — would help.

After the dust settles a little, Biden should sit for more one-on-one interviews, like this one he did with John Harwood ten days before his interview the special counsel. When you watch this kind of exchange, you quickly realize that Biden has a mental dexterity Trump lacks: He can listen to a question, process it, and produce a thoughtful answer germane to what was asked. Asking Biden a question is like playing catch: You throw him a question, he fields it, and throws an answer back. But asking Trump a question is like bouncing a rubber ball off an irregular stone wall: It will ricochet quickly, but in a direction that doesn’t seem to have much to do with your throw.

And finally, Biden needs to laugh. This is tricky, but Ronald Reagan pulled it off. When a questioner raised the age issue during a debate with Walter Mondale in 1984, Reagan made a solemn pledge:

I will not make age an issue in this campaign. I am not going to exploit for political purposes my opponent’s youth and inexperience.

By weeklysift | Posted in Articles | Comments (28)

Catching up on Donald Trump

January 8, 2024 – 9:31 am

As always, a lot of news during the last three weeks centered on Donald Trump. The main themes were

  • whether the 14th Amendment bans him from holding office again,
  • the partial report on the millions he received from foreign governments while he was president
  • mainstream media still hasn’t figured out how to cover Trump
  • campaign odds and ends

Let’s take those in order.

The disqualification argument. So far, Trump has been ruled off the primary ballot in two states: Colorado and Maine. The Colorado Supreme Court ruled him ineligible, as did the Maine Secretary of State. Trump is appealing those rulings and the Supreme Court will ultimately have to decide whether he is qualified to be president again. They plan to hear arguments in February.

The basis of his disqualification is Section 3 of the 14th Amendment, which reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The key legal questions to answer are:

  • Does the attack on the Capitol on January 6, 2021 qualify as an “insurrection”?
  • Did then-President Trump “engage” in this insurrection or “give aid and comfort” to the people who did?
  • Since the presidential oath does not include the word “support”, but does give the president the (arguably stronger) obligation to “preserve, protect, and defend the Constitution”, is an insurrectionist president disqualified?
  • Since the 14th Amendment does not specifically name the president, is the presidency covered by “any office … under the United States”?
  • What kind of legal process is needed to enforce disqualification? Both Colorado and Maine held evidentiary hearings where Trump was allowed to produce evidence that he is qualified. Is that good enough?

When I first heard the disqualification theory raised by retired Judge Michael Luttig and Harvard Law Professor Lawrence Tribe in an Atlantic article in August, I was ambivalent about it, largely because I wasn’t sure what the people who wrote, passed, and ratified the 14th Amendment intended insurrection to mean. All I would say then was:

disqualification is a serious question, and our legal system owes the country a serious answer.

Since then, both the Colorado Supreme Court’s decision and the Maine Secretary of State’s statement have addressed the legal questions with some fairly convincing arguments. The historical context of the term insurrection — remember, conservatives on the Supreme Court claim to be originalists — has been well covered by Ilya Somin, and covered in eye-glazing detail by Mark Graber. So my current opinion is that January 6 was an insurrection, so Trump is not legally qualified to be president again.

I am still open to hearing convincing arguments in the other direction. But what I don’t want to hear are political arguments about whether disqualifying Trump or attempting to disqualify him is a wise course for the nation or for Democrats to take.

Trump frames all the legal proceedings against him — the indictments, the defamation suits, the challenges to his qualifications for office — as political. When we calculate the political advantages and disadvantages of those actions, we validate that frame.

But whether or not the Constitution bans him from holding office again is a question of law, not politics. The whole point of including things in the Constitution is to take them out of politics. If constitutional provisions are subject to politics, then all the rights the Constitution supposedly gives us are up for grabs. Your right to do any particular thing will depend not on the Constitution, but on whether your action is politically popular.

Those who argue that “the people should decide” whether Trump should return to power are advocating that we ignore the Constitution. We didn’t let the people decide whether Barack Obama should be elected to a third term in 2016, when he would probably have beaten Trump. But instead, Obama and the Democratic Party accepted that the 22nd Amendment disqualified him, independent of how much support he had.

Another bad argument is that disqualifying Trump will lead to Republicans trying to disqualify Democratic candidates. This is something we hear constantly: Democrats shouldn’t use a process in good faith because it will inspire Republicans to use the same process in bad faith. (That’s what we’re seeing now with the attempt to impeach Biden as a tit-for-tat response to the Trump impeachments. They can’t even formulate a charge, much less support one with evidence comparable to the evidence against Trump.) If Republicans have legitimate constitutional grounds to disqualify current or future Democratic candidates, they should go for it and let the courts sort it out. But courts are not going to be impressed by “they did it to us” as grounds for disqualification.

The worst argument of all is that disqualifying Trump will anger his supporters, who might respond with an even larger insurrection than January 6. Timothy Snyder, who has written books about how fascist movements take power, calls this a “pitchfork ruling“

How does the rule of law become something else? First comes the acceptance that one person is not subject to the rule of law, for whatever bad reason — that he was in office; that he has violent supporters; that he is charismatic; that we are cowards. Once that move is made, once that hole is opened, the person so sanctified as a Leader has been empowered to change the regime itself, and will predictably try to do so.

In short, I think disqualification is a legal question that deserves a legal answer. Personally, I don’t believe the Supreme Court will disqualify Trump. But I’m eager to find out how they will come to that conclusion: Will they find a plausible argument qualifying him, or will they simply make up an excuse to avoid doing something they don’t want to do? I have often accused the conservative justices of invoking originalism in bad faith, as sophistry that justifies whatever their prior opinions were. They have a chance to prove me wrong here.

Jay Kuo covers the current state of other Trump legal cases, including the second E. Jean Carroll defamation case, which starts a week from tomorrow. Final arguments in the New York civil fraud case, where the state has upped its ask to $370 million, start on Thursday.

Foreign emoluments. From the beginning of his administration — and maybe throughout his entire life — Donald Trump’s attitude towards his legal obligations has been: “Make me.” If a law has no effective enforcement mechanism, he sees no reason to follow it.

During his administration, that attitude showed up in many areas, such as the Hatch Act, which “prohibit[s] federal employees from using their official authority or influence for the purpose of interfering with or affecting elections”. A report issued in November, 2021 by the Office of the Special Counsel found repeated violations of the Hatch Act by 13 Trump administration officials.

[W]ith respect to an administration’s senior-most officials—whom only the president can discipline for violating the Hatch Act—the Hatch Act is only as effective in ensuring a depoliticized federal workforce as the president decides it will be. Where, as happened in the Trump administration, the White House chooses to ignore the Hatch Act’s requirements, there is currently no mechanism for holding senior administration officials accountable for violating the law.

Thursday, we found out about another example of Trump administration lawlessness: violations of the Foreign Emoluments Clause of the Constitution, which prohibits US public officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” … “without the Consent of Congress”.

With respect to the President, the Foreign Emoluments Clause is enforced only the impeachment. So a lawless president who can count on the unflinching support of 34 senators can violate it to his heart’s content, which apparently Trump did.

A partial account of the money Trump took from foreign governments while president — at least $7.8 million from China, Saudi Arabia, and others — is the subject of a new report “White House for Sale: How Princes, Prime Ministers, and Premiers paid off President Trump“, written by the Democrats on the House Oversight Committee. The story of how this report came to exist, and why it isn’t the complete accounting we might hope for, is as interesting as the report itself.

At the very beginning of his administration, ethics experts recommended that Trump divest his business interests, particularly the ones that had foreign customers and clients. He refused to do so, and instead made an arrangement for his two adult sons, Don Jr. and Eric, to manage the Trump Organization in his absence, while he retained ownership and ultimate control. So foreign governments could do business that benefited the President (like owning a floor of Trump Tower or running up a big bill at a Trump hotel), the President could know about that business, and the President might subsequently take actions that furthered the interests of those foreign governments (like shielding MBS from the consequences of murdering Jamal Khashoggi).

When the House Oversight Committee (controlled by the House’s Democratic majority from 2019-2023) began investigating his foreign emoluments, Trump fought them at every turn, refusing to turn over documents and fighting subpoenas served to his accounting firm (Mazars) all the way to the Supreme Court. The Court ruled in the Committee’s favor in 2020, and Trump continued to try to limit the scope of the subpoenas in lower courts until an agreement was reached in September, 2022.

This agreement remained in effect only until March 2023, by which time Republicans had regained control of the House. New Oversight Chair James Comer then released Mazars from the agreement and ended the full committee’s investigation. So ultimately, only a fraction of the subpoenaed documents were turned over, only a fraction of Trump’s foreign emoluments were revealed, and the report was issued by the committee’s Democrats alone.

All this raises a question Comer and the Republicans have never answered: Why shouldn’t the public know about the profits Trump made from foreign governments?

This question is particularly appropriate given Comer’s focus on Hunter Biden’s foreign dealings, which he hopes someday to tie to President Biden, but so far has not. Why is it important to determine whether Biden has profited from foreign governments like China, when we already know for a fact that Trump did, and Comer does not care?

Media coverage. Thursday, AP wrote a headline outrageous in its false equivalence: “One attack, two interpretations: Biden and Trump both make the Jan. 6 riot a political rallying cry“. James Fallows commented with this parody:

Abraham Lincoln, Jefferson Davis: Two leaders, two traditions; both making the South’s “peculiar institution” a rallying cry.

Josh Marshall added:

Some headlines, you should look at yourself as a journalist and think I should stop being a journalist.

CNN’s Phil Mattingly responds as a journalist should:

There aren’t in fact two interpretations here. There is what happened, and then there are lies.

AP isn’t alone here. A big chunk of the mainstream media is still covering Trump the way it did in 2016: He says something false, Biden says something true, and the headline is “Two interpretations”. Journalists hate to “take a side”, but a higher priority should be to follow the truth. If the truth has taken a side, you have to follow it.

Promoting this kind of false equivalence is going to be a main thrust of the Trump campaign, and I was disappointed to see George Will — not normally a Trump puppet — echo it. “A Constitution-flouting ‘authoritarian’ is already in the White House” he wrote on Wednesday, citing Biden’s naming as acting head of the National Highway Traffic Safety Administration a woman whom he had been unable to get confirmed by the Senate, as if this were somehow comparable to Trump’s attempt to overturn the 2020 election or his plan to invoke the Insurrection Act on Day 1.

Other odds and ends. On the campaign trail, Trump has adjusted the famous “Are you better off than you were four years ago?” line that Ronald Reagan used against Jimmy Carter in 1980. Instead, he’s asking if you’re better off than you were five years ago. Apparently, his disastrous 2020 doesn’t count. (If you include 2020, Trump’s four-year job-creation total is negative. The economy lost 2.9 million jobs while he was in office.)

Now, I see the logic in giving Trump a mulligan for Covid-related job losses. (Up to a point. One reason the pandemic hit us as hard as it did was that Trump tried to happy-talk the virus away in the early months, and pushed disinformation about “cures” the whole time. Estimates vary wildly, but it’s easy to justify the claim that the cost of his mismanagement in lives-lost runs into the hundreds of thousands.) But if you give Trump a pandemic jobs mulligan, you also have to give Biden a post-pandemic inflation mulligan. Both the unemployment and the inflation were worldwide phenomena that were driven by external forces. As a Biden supporter, I don’t claim Biden would have created jobs during 2020. But Trump supporters almost universally assert — based on nothing — that Trump would have controlled inflation in 2022-23.

In general, dropping Trump’s fourth year down the memory hole allows him to ignore what crappy shape the country was in when the failure of his coup forced him to hand it over to Biden. And once you’ve ignored that fact, Biden’s performance in office doesn’t look nearly as impressive as it has actually been.

Who could have guessed that the Civil War would turn out to be an issue in the Republican primary campaign? It started a few weeks ago with Nikki Haley’s strange inability to say the word “slavery” when some New Hampshire voter at a post-Christmas town hall meeting asked her about the cause of the war. After suffering a day of ridicule, she backtracked and said, “Of course the Civil War was about slavery.” But the damage was done.

Republicans used to ridicule Democrats about “political correctness” when they’d use some strange circumlocution to avoid saying something that would offend part of their base, or appeared not to know what the currently acceptable terminology was. But now the shoe is on the other foot. White supremacists and Confederate apologists are a key part of the Republican base, and candidates have to speak carefully to avoid offending them by hinting, say, that the Confederates were the bad guys in the Civil War. It’s a weird turn of events for the Party of Lincoln, but here we are.

Anyway, Trump got into the act Saturday, saying that he could have avoided the Civil War through “negotiation”. Now this is laughable in one way and downright hilarious in another. The suggestion of negotiation is itself laughable, because Americans as skilled as Henry Clay and Daniel Webster tried to negotiate the slavery issue, continuing efforts that had been going on since the Continental Congress assembled the Declaration of Independence. But slavery was at the center of Southern identity and was “a positive good” according to John Calhoun. All along, the South was clear that it would go to war rather than give up its slaves. Lincoln came into office offering to let Southern states keep their slaves, but to ban slavery only in the western territories. But that wasn’t good enough for the South. So what offer does Trump imagine they would have accepted?

CNN’s Dean Obeidallah looks at Trump’s record of praising Confederates and pandering to White supremacists, and asks a more interesting question:

The question for me is not whether Lincoln could have made a deal that would have made the slave-owning states happy enough to remain in the Union. What I wonder about is which side would’ve Trump sided with in the Civil War: The Confederacy or the United States of America? The track record of a president facing accusations of attempting his own insurrection, which he of course denies, would seem to readily answer that question.

What’s hilarious is the idea that Trump could have negotiated this. If we learned anything during his four years in office, it’s that Trump can’t negotiate anything. North Korea still has nukes, China is still running a huge trade surplus, ObamaCare hasn’t been replaced, he never got out of Afghanistan, he never got the “better deal” he claimed his rejection of the Iran nuclear agreement and the Paris climate accords would lead to, and the Dreamers still have no legal status, just to name a few issues that his mythical deal-making skill was supposed to take care of.

Trump played a great deal-maker on TV. But he’s a terrible deal-maker in reality.

Thursday, a shooter killed one student and wounded several other people, including the principal, at Perry HIgh School in Perry, Iowa. Friday night at a campaign rally in Sioux City Donald Trump said, “It’s just horrible – so surprising to see it here. But we have to get over it. We have to move forward.”

In the immediate aftermath of a shooting, pro-gun people usually claim that it’s “too soon” to discuss doing something about America’s gun problem, or that using public sorrow and anger to promote solutions is “politicizing tragedy”. But in Trump’s new rhetoric, the very idea that something could be done is taken away. Somebody’s kid died needlessly? Get over it.

I did some googling to see how Fox News covered this quote, but I came up empty. Imagine the channel’s 24/7 focus if Biden had said something half this clueless.

By weeklysift | Posted in Articles | Also tagged | Comments (15)

The Remarkable Biden Economy

November 27, 2023 – 10:58 am

Under Biden, the US has faced the post-Covid challenges better than just about any other country in the world.

The polls. Most readers of this blog, I imagine, are worried about the polls. A string of polls have shown Trump with a lead over President Biden, and the current RCP poll average has Trump up by 2.3%.

Now, 2.3% isn’t much, and polls a year ahead of the election are not that meaningful, particularly when the media focus is on the opposing party’s primary campaign. A number of Republican candidates are touring the country and putting their commercials on television, and those ads start from the premise that the Democratic president is doing a terrible job and deserves to lose. President Obama had a small lead (less than 1%) over Mitt Romney at this point 12 years ago, and the RCP had Romney ahead at several points in October of 2012. Obama wound up winning by 3.9%.

The betting markets — whose predictive record is probably even worse than the early polls — are mixed. One has Trump-to-win at 40 cents on the dollar and Biden-to-win at 37 cents. But Democrat-to-win-the-presidency is at 55 cents.

I have explained in a past post why I think Biden will still win. But what the polls do tell us is that three important parts of the Biden message have not gotten through yet to most voters:

  • A second Trump term will mean the end of American constitutional democracy. In his response to losing the 2020 election, Trump showed us just how little he respects the will of the voters and how much he is willing to do to hang onto power. His recent rhetoric and his announced plans for a second term are openly authoritarian, and can be fairly described as fascist.
  • Biden has been an excellent president, particularly in his stewardship of the economy. The issue on which the polls give Trump his biggest advantage over Biden is the economy. But this is a complete misperception. The Covid pandemic disrupted the economy of every nation on the globe, and recovery has been difficult everywhere. But under Biden, the US economy is doing as well or better than just about any country in the world: GDP is rising, jobs are plentiful, and wages-after-inflation are rising. Post-pandemic inflation was a worldwide phenomenon, but the US has handled it better than most.
  • Biden will continue fighting climate change. Trump will reverse the progress Biden has made. Getting from a fossil-fuel-based economy to a sustainable-energy economy will require a lot of government investment, because the advantages of a more temperate planet are hard for private-sector corporations to capture. Biden began making those investments in the American Rescue Plan, and more emphatically in the Inflation Reduction Act. The Republican Party is still in the pocket of the oil companies, though, so any Republican victory will not just stop that progress, but actively undo it.

I covered the first point last week. In this post I want to look at the second. I hope to get to the third before long.

The state of the country on Inauguration Day. One similarity between the Biden and Obama administrations is that both presidents were handed an economy in terrible shape, a fact that the opposing party was very good at getting the public to forget. The month Obama took office, the economy lost nearly 600,000 jobs, the unemployment rate was 7.6%, and many worried that we were headed into a second Great Depression. The bad trends continued for several months, but by January, 2017, Obama was able to hand off to Trump an economy in very good shape: 4.8% unemployment, consistent job growth that would lower it further, and low inflation.

Four years later, the economy Trump handed off to Biden was doing very badly indeed: unemployment at 6.3%, GDP at virtually the same level it had been at the start of the pandemic, and a federal budget deficit of around $150 billion per month.

Trump tends to get a mulligan for that poor overall performance, because we usually think of the pandemic like a hurricane or other natural disaster: It’s an unfortunate thing that (mostly) wasn’t his fault, and that screwed up his plans as much as it did ours.

For some reason, though, Biden doesn’t get the same mulligan: Not only didn’t Covid magically end on Inauguration Day, but the disruptive policies that world leaders (including Trump) implemented to fight Covid have had longer-term effects. So Biden has had to sail through choppy economic waters since Day One, and has done so remarkably well.

The inevitability of post-pandemic inflation. Compounding the economic problems of the Covid shutdown was an overhang of savings: Like most other countries, the US (under Trump, remember) had shut down much of its economy intentionally, in order to save lives. To a large extent, this had meant paying people not to work: The government subsidized shut-down businesses that kept people on their payrolls, and even sent money to people directly.

For many people, these payments were life-savers. Otherwise, they would have been homeless during a deadly pandemic. (Recall, even with these mitigation efforts, Covid deaths peaked in January, 2021, with over 100K deaths in the US that month.) Those personal bankruptcies could easily have cascaded into business bankruptcies, Great-Depression style.

For others, though, the government checks went straight into the bank, because most of what they had been spending money on was shut down. No one was driving, for example, both because travel seemed unsafe and because there was nowhere to go. (The collapse of demand sent average gas prices down to $1.82 per gallon. This number is sometimes used today as a things-were-better-under-Trump argument, but in fact it is a measure of just how bad things got. If we have another pandemic that kills thousands of people every day, gas prices will sink again.) No one bought new cars, because their current car was rusting in the garage. Cruise ships and airliners looked like death traps.

At a macro level, the effect of this policy was to preserve purchasing power even as production dropped. Basic supply-and-demand thinking makes the outcome obvious: As soon as people started buying again, inflation was going to cut loose.

That’s what happened around the world.

Biden’s dilemma. By January, 2021, the US economy had begun to reopen, but it was still 9.9 million jobs short of where it had been when the nation first felt the effects of the pandemic in February, 2020. So the twin threats of inflation and recession were both looming. Too much government stimulus would exacerbate inflation, but too little might repeat the mistake both the US and Europe made in response to the Great Recession of 2008, when a focus on austerity slowed growth so much that it took years for the economy to fully recover.

Biden opted for a full recovery and got it.

Economic performance. Under Biden, the unemployment rate fell from 6.3% to under 4% by February, 2022, and has stayed below 4% ever since. During the period Trump describes as “the greatest economy ever”, unemployment got as low as 3.5%. But it was 3.4% in both January and March of this year.

The price of that impressive jobs performance has been inflation, which peaked in the summer and has declined considerably since: 3.2% year-over-year rather than 9% in the summer.

But US inflation is not purely Biden’s responsibility. Our inflation performance parallels (and in fact is somewhat better than) inflation rates around the world, which (according to Statista) peaked at 8.7% in 2022 and fell to 6.9% this year.

That inflation is unfortunate, but American wages have largely kept up. Average real hourly earnings (i.e., adjusted for inflation) were at $11.03 (in constant dollars from 1982) in February, 2020, rose considerably early in the pandemic (to $11.72 in April, 2020, probably because workers able to keep working from home made more money to begin with), fell to a low of $10.92 in June, and have risen back to $11.05 by October.

So average real wages are back at pre-pandemic, best-economy-ever levels, and are rising.

What’s more, Biden actually got some important things done with that money the government needed to spend to stimulate the economy back to full employment: He financed a vaccine program that has saved countless American lives, began making good on Trump’s failed promises to rebuild our infrastructure, and started the US transition to a sustainable-energy economy.

What’s the Trump anti-inflation plan? It is an article of faith on the right that inflation would not have happened under Trump — the post-pandemic overhang of savings would have dissipated with no effect, and jobs would have bounced back without additional stimulus. Going forward, we’d be back to the full-employment low-inflation days of February, 2020.

What policies would bring this about? That’s where things get murky. Republicans in Congress talk about cutting spending, but that didn’t work so well, either here or in Europe, in the aftermath of the Great Recession. What’s more, Trump has never cut spending. Federal spending increased every year under Trump (even before the pandemic). And who’s going to pay for the ten futuristic cities he has promised to build?

Other policies Trump is famous for — tariffs, for example, which he promises to increase sharply, or expelling immigrants who work for low wages — would make inflation worse, not better.

In short, if you’re counting on Trump to beat inflation, you’re betting on the magic of the Trump name, because he hasn’t offered us anything else.

Why doesn’t Biden get credit for his good economic record? Trump has one talent that Biden lacks: He is very good at claiming credit when things go right and at blaming others when things go wrong. So, for example, his administration’s pre-Covid economic record mainly consisted of keeping going the trends that Obama had established. (Look at that job-creation graph above. The slope in Trump pre-pandemic performance is exactly the same as the trend in Obama’s second term.) But in retrospect it’s the Trump economy, not the Obama economy.

Ditto for the Covid mulligans: Trump gets one, but Biden doesn’t. Matt Yglesias summarizes:

It’s like how we don’t hold the disastrous state of the economy in 2020 against Trump because the pandemic interceded, but somehow Joe Biden is personally culpable for the fact that restoring full employment and real output couldn’t be achieved at zero cost.

But a discussion between NYT business writers Binyamin Applebaum and Peter Coy pinpoints a second reason: People aren’t reacting to the current state of the economy at all, but to their long-term pessimism about the future.

In an NBC News poll released last weekend, only 19 percent of respondents said that they were confident the next generation would have better lives than their own generation. NBC said it was the smallest share of optimists dating back to the question’s introduction in 1990. …

I think what we’re experiencing is a crisis of faith in the narrative of capitalism — at least as practiced in the United States in 2023 — as an engine of shared prosperity. Americans are dying sooner. They can’t afford to own a home. The cost of college is crushing. Global warming looms. And the world seems a lot less safe and stable than it did a few years ago.

As for what we do about that …

In 2024, Biden and Trump will represent two options for dealing with that pessimism: With Biden, we can continue taking small steps in the right direction that may or may not be adequate to the scale of the problems. With Trump, we can distract ourselves chasing “enemies within”, punishing scapegoats, and imagining that our leader has some messianic power to make us all great again.

I hope America chooses wisely.

By weeklysift | Posted in Articles | Also tagged | Comments (6)

About the polls

September 25, 2023 – 9:25 am

Yes, I’d enjoy seeing polls showing Biden way ahead of Trump. But it’s too soon to worry about such things. There’s more than a year of campaigning still to come.

I haven’t wanted to write about the 2024 general election polls, because I don’t think they mean much at this stage, and they’re part of the horse-race framing that I think gets way too much attention in our politics. I mean: Why talk about democracy or climate change or abortion or Ukraine or the economy or the completely senseless government shutdown that will probably start next week — or even about the issues conservatives focus on like the border — when TV’s talking heads could be discussing who’s up and who’s down? Or they could talk about image problems like Biden’s age (but not Trump’s).

But anyway, polls have been getting so much attention in the news that I know you’re thinking about them. It’s hard not to: Just about all the polls show Biden and Trump tied, with one outlier giving Biden a 6% lead and another showing Trump up by 10%. The Trump-favoring polls get more headlines, because they amount to a man-bites-dog story: A guy under multiple indictments who could well spend the rest of his life in jail is the candidate some large number of Americans want as their president.

I know: It’s crazy. Trump lost in 2020 by seven million votes, and that was before he tried to break American democracy, before the justices he appointed to the Supreme Court took away American women’s reproductive rights, and before the summer of weather disasters proved to any reasonable person that climate change is real and serious. How can this race even be close?

The case for Biden. Biden, meanwhile, has been an excellent president. He succeeded in achieving a number of things Trump promised but never accomplished: getting us started rebuilding our roads and bridges and bringing manufacturing back to the US, just to name two. The process of withdrawing our troops from Afghanistan was ugly, but the end result is that we are out of Afghanistan — another thing Trump promised but never delivered.

Trump had left NATO in tatters, with our allies wondering if the US could be counted on to fulfill its treaty obligations. But under Biden’s leadership, NATO has proved resilient against Russian aggression in Ukraine.

After the Covid shutdowns, when governments paid people not to produce — a policy of both the Trump and Biden administrations — inflation has been an issue around the world. But even there, under Biden the US is doing better than comparable economies.

And Biden has accomplished all this without the constant drama of the Trump administration. No nasty tweets. No demeaning nicknames for his opponents. No statements implying that his critics deserve to die or inviting his supporters to get violent. In short: as president, Trump was a constant embarrassment to the United States of America. Biden is not.

Polls. But OK, the polls: Why isn’t this case for Biden resulting in a polling lead? The short answer is that I don’t know, and the news coverage about the polls isn’t helping me figure it out. I’ve seen countless interviews with people who supported Trump in 2020 explaining why they’re standing by him. But he lost in 2020. The only way he can win in 2024 is if people who didn’t vote for him have changed their minds. The news media ought to be searching out those people, but so far they’re not.

Meanwhile, MAGA politicians failed badly in 2022, losing states Trump needs to win back, like Pennsylvania and Georgia. And that trend has continued into 2023: a liberal won a state supreme court election in Wisconsin by a wide margin, and MAGA candidates have continued to lose special elections.

So why hasn’t that trend shown up in the Trump/Biden polls? I have two tentative answers: The first is that so far hardly anyone has been making the case against Trump. You would ordinarily expect the people running against him for the Republican nomination to make that case, but with the exception of Chris Christie, they’re really not.

I have two windows into the primary campaign: My local TV stations are from Boston, and cover much of southern New Hampshire, so if you’re running in the New Hampshire primary, your ads appear in Boston. Also, as a Michigan State graduate, I follow Big Ten football, which means I’ve watched a number of University of Iowa games on the Big Ten network. Those games always include a number of political ads.

So far I have not seen a single attack ad against Trump. Maybe if you do a YouTube search you can find one — I didn’t — but whatever candidate made it is not airing it much.

Meanwhile, Biden has been standing aside while the justice system prosecutes Trump’s crimes. So far, then, the case against Trump has not entered the 2024 campaign. That won’t last. Trump is a very vulnerable candidate, and when those attack ads get made, they will have an effect.

Age. The second thing affecting the polls is that so far, Biden’s age has become the “but her emails” story of 2024.

Yes, Trump may be a felon who tried to stay in power in spite of the voters, and yes, his happy talk at the outset of Covid may have gotten over 100K Americans killed unnecessarily, and yes, reelecting him might lead to the end of American democracy … but Biden is old.

There is almost nothing political reporters can’t turn into a story about Biden’s age. When his campaign rolled out a new wave of TV ads and public appearances, The New York Times described the initiative this way: “As Democratic Jitters Grow, Biden Campaign Tries to Showcase His Vigor.” The paper’s story Monday on Biden’s recent trip to Asia — which even Fox News described as an “all-nighter” — was nevertheless titled, “‘It Is Evening, Isn’t It?’ An 80-Year-Old President’s Whirlwind Trip.” The next day, The Wall Street Journal ran a story headlined, “Is Biden Too Old to Run Again? We Asked People Born on His Exact Birthday.” If he shows signs of aging, it makes the front page; if he doesn’t, it’s the occasion for a discussion of how he and his advisers are working to defuse the issue. 

And yes, Biden is three years older than Trump. But he is fit and takes care of himself, while Trump is fat, avoids exercise, and reportedly lives on junk food. [1] Which one do you think is more likely to run into health issues in the next five years? I’d say Trump.

When it comes to stamina, Trump was never a hard worker. He famously started his White House days at 11, and his schedules included lots of down time that he mostly spent watching TV and tweeting.

Cognitively, Biden tends to stumble over words, which he has done all his life. Trump meanders aimlessly, shifts every conversation to his hobby-horse grievances, produces word salads that mean nothing at all, and seems helpless to control his anger issues. If you don’t think Trump has declined, watch this video from the 2015 campaign: Russian spy Maria Butina asks him about Obama’s Russia sanctions, and Trump gives an answer that is both complex and coherent. When was the last time you saw him do anything like that?

Looking forward. So do I think those factors will continue to prop Trump up until the election? No, I don’t. Eventually, Trump attack ads will get made and aired. Having seen what happened in 2016, the public will object to the but-her-emails coverage of Biden’s age. (For now, we should all be adding comments calling out the most egregious articles.) As the campaign goes forward, it will be harder to maintain the myth of Biden’s senility. And as Trump goes to trial, the public will see that the charges against him are more than just politics.

And a year from now, when the fall campaign is really happening, voters will tune in. A lot of them will want to know what these candidates intend to do for them. Biden has a vision and a record of accomplishment. Trump does not. Ultimately, that’s going to count.

[1] A frequent topic of discussion on my social media feeds is whether pictures like this are “fat shaming” Trump, which is a no-no. But if we’re honestly talking about longevity issues, weight is relevant. And we have to use pictures, because Trump lies about the numbers.

By weeklysift | Posted in Articles | Comments (6)

We’re all in law school now

September 11, 2023 – 10:16 am

Simply following the news is teaching the public more about law
than most of us ever wanted to know.

Star Wars movies are famous for building up to climaxes with three centers of simultaneous action. The decisive scenes of Return of the Jedi, for example, jump from the battle on the Planet Endor to the raid on the second Death Star to the Luke/Vader/Emperor showdown. Maintaining three centers of narrative action, it seems, optimizes something having to do with human attention: The tension builds as focus shifts from one center to the next, and viewers can keep track of all three without saying “Oh, I forgot about him” or “Where are we now?”

Sadly, though, the Trump trials have now gone well past the Lucas point, and have reached the you-can’t-tell-the-players-without-a-program stage.

This week’s run-down. Currently, four Trump indictments are pending in four different jurisdictions, two state and two federal. In New York and D.C., he is indicted by himself. In Florida he has two indicted co-conspirators, and in Georgia he has 18. The total number of counts is just under a hundred.

Worse than the sheer number of venues, defendants, and charges, the action in each jurisdiction has a way of spreading: This week, for example, the most significant developments in the Fulton County indictment were happening in federal rather than state court, and Fulton County DA Fani Willis was fending off attempted interference from Republicans in Congress. We also found out the names of 30 conspirators Willis decided not to indict, in spite of the recommendations of the special grand jury.

Two of the 19 Fulton County RICO defendants filed for a speedy trial, but neither wanted to share a trial with the other. The judge had good news and bad news for them: Your trial starts October 23, but you’re each stuck sitting next to that other loser.

In addition to the criminal cases, there are civil lawsuits. The NY attorney general’s $250 million fraud lawsuit against the Trump Organization will go to trial on October 2, assuming neither side gets the summary judgment it’s asking for. And Wednesday, E. Jean Carroll won a second defamation decision against Trump: The judge ruled that since the statements in question were so similar to ones a jury already had found defamatory, no trial was needed, other than to establish damages. Trump is already on the hook for $5 million pending appeal, and his mouth is still running.

And lest we forget: There is the open legal question of whether Trump is even eligible to be president again, given the disqualification clause of the 14th Amendment.

Then there are the criminal cases of related defendants: The trials of the January 6 rioters are not quite done yet. Tuesday, Proud Boys leader Enrique Tarrio was sentenced to 22 years in prison for his role in planning the assault on the Capitol. Commenters on the Fox News article about the sentence were incensed: “22 years and he wasn’t even there”. But if you plan a crime and recruit people to carry it out, you don’t have to be there. You could be, say, watching TV at a White House dining table and still be guilty.

And John Eastman may be a Fulton County RICO defendant, but he also had to testify at his disbarment hearing in California this week. He “doesn’t recall” making statements that Vice President Pence’s chief of staff has testified under oath that he made.

Oh, and Peter Navarro — I really had forgotten about him — was found guilty of contempt of Congress. Remember? He blew off subpoenas from the House select committee investigating January 6. (Remember them?) It turns out that ignoring subpoenas can get you into trouble. Who knew? Navarro certainly seemed shocked to discover that “Trump told me to” isn’t a universally recognized defense, particularly if Trump didn’t put those instructions in writing.

Steve Bannon (another blast from the past) was convicted of the same charge last summer and sentenced to four months. But he’s still out pending an appeal that will be heard in October. His fraud trial (for misappropriating money raised to build Trump’s wall) is scheduled for next May.

Got all that?

Federal removal law. The upside of this complexity is that (if you manage to keep paying attention) you’re getting an excellent layman’s education in law. This week’s best lesson was US District Judge Steve Jones’ ruling that denied Mark Meadows motion to move his RICO case from Georgia state court to federal court. His decision didn’t just say no; it gave an very clear explanation of the federal removal statute, what it’s for, and how it functions.

The point of the law is to keep states from interfering with federal officers enforcing federal law. For example, occasionally you’ll hear talk among Second Amendment enthusiasts about how local sheriffs should arrest federal officials who show up trying to enforce federal gun laws. If state courts then heard those cases, local police and judges could work together to effectively screw up federal law enforcement.

So instead, any federal official who gets arrested in the course of carrying out his or her duties can get the case moved to federal court. (That’s what Meadows was trying to do, and what Trump would undoubtedly try to do if Meadows succeeded.) On the other hand, just being a federal official isn’t enough. If, say, an FBI agent gets arrested for robbing a bank, his case is no different from anybody else’s.

If you keep that pair of examples in mind, the law makes perfect sense.

So Meadows had to argue that his case was more like the ATF agent than like the bank robber. In other words, Fani Willis had indicted him for carrying out his duties as White House chief of staff. And that was not a completely crazy argument, because some of the specific actions alleged in the indictment are Meadows arranging phone calls and sitting in on meetings, as any White House chief of staff would do.

But Meadows’ problem, as Jones points out, is that that acts cited in the indictment are not the crimes he’s been charged with. The crime is participating in a conspiracy to change the results of Georgia’s 2020 presidential election. The specific actions cited in the indictment simply illustrate that involvement.

So the relevant question is whether White House chiefs of staff have a legitimate role to play in overseeing how states count their votes and allocate their electors. If so, then Meadows (and Trump) might have been playing that role when, say, they pressured Brad Raffensperger to “find” more votes for Trump. It would then be up to a federal court to decide whether Meadows had been carrying out those duties within the law.

But Jones ruled that Meadow had no legitimate role to play as chief of staff: Running elections is a state matter. And under the Constitution, any federal oversight role belongs to Congress, not the president or his staff.

Jones’ ruling has two important consequences:

  • If removal had been granted, Meadows’ had already filed a motion to dismiss the charges, for basically the same reason: He was simply carrying out his federal duties. That motion is now moot.
  • While the judge explicitly wrote that he was not prejudging the claims of any other defendants (like Trump), the logic of his argument will be hard to overcome: Trump and all of his co-conspirators were meddling in something that was none of the president’s official business. None of them have a good argument for moving to federal court or having the charges dismissed.

Willis v Jordan. I think Jim Jordan was trying to intimidate Fani Willis, but it doesn’t seem to have worked. On August 24, Jordan wrote a letter to Willis under the House Judiciary Committee letterhead, saying:

Congress may probe whether former Presidents are being subjected to politically motivated state investigations and prosecutions due to the policies they advanced as President, and, if so, what legislative remedies may be appropriate.

After mentioning his subcommittee’s subpoena power, he demanded she produce by September 7 (Thursday) documents related to her investigation of former president Trump, and especially any communications with Jack Smith or other federal officials.

On Thursday, Willis responded with none of the requested documents, but a letter of her own.

Your letter makes clear that you lack a basic understanding of the law, its practice, and the ethical obligations of attorneys generally and prosecutors specifically.

She goes on to school Jordan, explaining (with detailed legal references) all the reasons that his demands are unconstitutional: They cross the line between state and federal sovereignty, as well as the line separating legislative and executive functions. They interfere with the administration of criminal justice, and violate the form of executive privilege that protects a prosecutor’s deliberative process.

Given all that, she could in good conscience ignore the arguments Jordan made.

While settled constitutional law clearly permits me to ignore your unjustified and illegal intrusion into an open state criminal prosecution, I will take a moment to voluntarily respond to parts of your letter.

Her main piece of advice is that Jordan learn to “deal with reality”, in particular the reality that Donald Trump is a citizen with no special rights.

Here is another reality you must face: Those who wish to avoid felony charges in Fulton County, Georgia — including violations of Georgia RICO law — should not commit felonies in Fulton County, Georgia. In this jurisdiction, every person is subject to the same laws and the same process, because every person is entitled to the same dignity and is held to the same standard of responsibility. Persons’ socioeconomic status, race, gender, sexual orientation, or political prominence does not entitle them to an exemption from that basic standard.

She schools Jordan on how Trump’s rights are properly defended.

[O]bjections to a criminal investigation or prosecution are properly raised—at least in the first instance—at courts with lawful jurisdiction, not through partisan legislative inquiries. The courts in the State of Georgia are fully up to the task of adjudicating the rights of all parties at issue.

Finally, in response to his implicit threats to any federal funding her office receives, she concludes with a series of suggestions for useful work Jordan’s committee might do, such as increasing federal funding for worthwhile purposes like paying witness advocates, processing rape kits, helping at-risk children avoid the criminal justice system, and upgrading state crime labs generally.

The lesson I draw from this exchange is that if you want to mess with Fani Willis, you’d better be a lot sharper than Jim Jordan.

Does the 14th Amendment disqualify Trump? This idea has been rattling around for a few weeks now, and was explained in some detail by J. Michael Luttig and Lawrence Tribe in the August Atlantic. (And in a lot of detail by a law journal article I haven’t read.) But it’s mostly been theoretical until Tuesday, when Citizens for Responsibility and Ethics in Washington (a real organization that’s been around for a while, not something put together for this purpose) filed a lawsuit in Colorado. The suit seeks an injunction forcing the Colorado Secretary of State to leave Trump’s name off the state’s Republican primary ballot, for reasons that would also apply to a general election ballot.

Presumably, this case will work its way up through the Colorado state courts and will eventually be appealed to the Supreme Court, whose ruling would then apply to all states.

Truthfully, I had never paid much attention to the 14th Amendment‘s third section. The first section is one of the most quoted parts of the Constitution: It guarantees citizenship to anyone born in the United States, as well as “due process of law” and “equal protection of the laws”. Courts are constantly arguing about precisely what those phrases mean.

But Section 3? Not so much. Here’s what it says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Just about everybody’s initial reaction to this is that Trump would have to be convicted of some crime relating to “insurrection or rebellion” before he’d be disqualified from being president again. And since an conviction is unlikely to become final before the 2024 election, Section 3 wouldn’t apply.

But Luttig and Tribe point out that qualifications don’t work that way. No one has a right to be president, so this isn’t a matter of taking Trump’s rights away. So the criminal proof-beyond-reasonable-doubt standard shouldn’t apply.

Instead, it’s up to the individual states to determine how their presidential electors will be chosen and what candidates are qualified to receive their votes. If a secretary of state in a place like Colorado determines that Trump is ineligible to be president because he supported an insurrection, that’s no different than determining that a candidate isn’t 35 years old or hasn’t already served two terms. The question is about the fact of insurrection, not whether or not there’s been a conviction.

Now, Section 3 has never been tested, so no one knows precisely what phrases like “insurrection or rebellion” or “aid and comfort to the enemies” should mean in practice. So somebody’s going to have to hold some evidentiary hearings, and then the courts will have to make some interpretations. Somebody will have to have the last word, and that will probably be the Supreme Court.

Another objection is to say “let the voters decide”. But if that’s how we do things, why are there constitutional qualifications at all? What if the voters want to elect an 18-year-old president? Or give Obama a third term? For constitutional qualifications to mean anything at all, they have to supersede what the voters want.

Whether disqualifying Trump is politically wise is another question entirely. But legally that’s beside the point. It may not always be politically wise to protect an unpopular religion’s freedom to worship, or to enforce many of the other rights our Constitution guarantees. The point of having a constitution is that some principles have to override the politics of the moment.

Personally, I don’t have a dog in this fight. What I’d really like to see is for Trump to be rejected by the voters, either in the primaries or in the general election. If he’s allowed to run, I think that will happen, current polls notwithstanding. But disqualification is a serious question, and our legal system owes the country a serious answer.

By weeklysift | Posted in Articles | Also tagged | Comments (10)

Republicans think they’ve found a way to pitch abortion bans

August 28, 2023 – 9:52 am

Abortion bans are unpopular, unless their advocates can demonize the opposing position and distract voters from what they really want.

Since the Dobbs decision last year, abortion has been a winning issue for Democrats. Whenever the issue of abortion has been put in front of the voters, the abortion-rights side has won, even in red states like Kansas, Kentucky, and (most recently) Ohio. Abortion was clearly a factor in liberals gaining the swing vote on the Wisconsin Supreme Court, and in Democrats seizing complete control of state government in Michigan.

Pre-election polling by the Epic-MRA pollster Bernie Porn also highlighted how this year’s abortion rights initiative benefited Dems. Asked what single issue was motivating them to vote, 43% of respondents said abortion, which topped inflation by about 14 points.

“Abortion, abortion, abortion,” Porn said. “This proposal drove women and younger voters to the polls … and if Democrats in other states have a mechanism to put an abortion ballot proposal on the ballot in 2024, then they should consider that.”

A pragmatic Republican politician, then, should want to play this issue down. The no-abortion-at-all, life-begins-at-conception position is the Republican equivalent of defund-the-police: A segment of the base is strongly committed to it, but it’s an almost certain loser if you put it in front of the general electorate.

Democratic candidates, for the most part, have handled defund-the-police like this: They express sympathy for the concerns of the activists (i.e., police violence against people of color), but change the subject whenever specific proposals come up, and run away completely if they are asked to say “defund the police” in public.

So far, though, Republicans have not been able to do anything similar with abortion. Their anti-abortion base is too large and feels too entitled to primacy. Taking over the Supreme Court was the work of decades, and now that the Court no longer stands in their way, they want action. At the state level, they’re getting it, at least in red states that leave legislating to their gerrymandered legislatures and keep abortion propositions off the ballot. But those new laws are producing horror stories that motivate women around the country to vote for Democrats.

What to do?

This week’s Republican presidential debate gave us a look at the current state of play. Everyone on the stage identified themselves, in one way or another, as “pro-life”. But no one volunteered their support for the kind of complete-ban proposals that used to be at the center of the anti-abortion movement.

The one who came closest was Mike Pence, who called out abortion as a “moral issue” and pledged to be a “champion of life” in the White House. But even he could only offer that “A 15-week ban is an idea whose time has come”. [1]

North Dakota Governor Doug Burgum (who signed a 6-week ban in his state) held out for leaving the issue to the states. And I can’t find a debate quote from Chris Christie, but elsewhere he also has also said abortion should be a state matter. But everyone else coalesced behind a federal 15-week-ban, with some hand-waving in the direction of exceptions for rape, incest, and (possibly) maternal health. [2]

N weeks. The basic framing is rarely stated explicitly, but it goes like this: There is some point in every pregnancy where the government’s judgment becomes better than that of the people who are actually involved. So while (up to some point) the government may allow women to consult with the people they trust and decide whether or not to go forward with a pregnancy, beyond that point the government’s decision prevails. Ditto for doctors: Up to some deadline, a doctor may decide whether or not the best thing to do for a patient is to perform the abortion she is asking for, but past that point the decision belongs to the government.

Once you accept that framing, the only decision to make is when the government takes control. There’s going to be an N-week ban, except for a few special situations the government recognizes. So the only issues left to discuss are what N should be and what exceptions should be allowed.

Under the Roe v Wade framework, women had a complete right to choose abortion during the first trimester of pregnancy. In the second trimester, states could impose restrictions narrowly tailored to protect the woman’s health. In the third trimester, the potential viability of the fetus outside the womb allowed states to impose more-or-less complete bans. The Casey decision of 1992 mostly reaffirmed Roe, but shifted the focus more to viability: When could a fetus survive outside the womb? The viability standard depends on a number of factors, including the progress of technology, but generally it set N at around 24 weeks.

So in proposing a 15-week federal ban, the Republican candidates are framing themselves as moderates willing to compromise (at least until they have more power): Their base would like N to be zero, but they’re willing to settle on 15. The real radicals, they claim, are those who reject the N-week model altogether: They support “abortion up to the moment of birth”, a phrase that seems to have been well tested in focus groups.

Ron DeSantis (who signed a 6-week ban shortly after he was reelected and didn’t have to defend it to Florida voters) laid it out like this:

What the Democrats are trying to do on this issue is wrong: to allow abortion all the way up to the moment of birth. … We’re better than what the Democrats are selling. We are not going to allow abortion all the way up till birth and we will hold them accountable for their extremism.

Martha McCallum, a debate moderator, teed up a similar question for Burgum:

What do you say about the states, there’s about five of them, including New Jersey, I think a few others, that allow abortion up until the time of birth. Now if you were president, would you be able to abide that?

Tim Scott also invoked the phrase:

We cannot let states like California, New York, and Illinois have abortions on demand up until the day of birth. That is immoral. It is unethical, it is wrong. We must have a President of the United States who will advocate and fight for at the minimum a 15-week limit.

And Nikki Haley went on offense: Democrats who don’t like 15 should be pushed to specify what number they do support.

What I would love is for someone to ask Biden and Kamala Harris: Are they for 38 weeks? Are they for 39 weeks? Are they for 40 weeks? Because that’s what the media needs to be asking.

Jen Psaki summed it up:

This wasn’t just some throw-away line for applause on the debate stage. This is a talking point.

The demonized image. It’s not hard to see why “abortions on demand up to the day of birth” polls so badly. It invokes the image of a healthy woman who carries a healthy fetus for nearly nine months, and then, on a whim, decides to kill her baby rather than let it be born and given to some deserving childless couple eager to provide a loving home. By refusing to stop her from performing such a heinous act, you and I and the nation as a whole are “allowing” it to happen.

But once you draw that scenario into the foreground of your awareness, it should be obvious that it literally never happens, not in New Jersey, California, New York, or anywhere else. Abortions after 21 weeks (still well before birth) were already rare, even under Roe. [3] They get rarer with each week of gestation.

Nearly every one is a special case of some sort. That stands to reason: Who is going to endure months and months of pregnancy if they plan not to have a baby? Women who get late abortions are almost all women who decided not to get early abortions. Overwhelmingly, they wanted to have a child, and then something unexpected happened. Maybe the woman has cancer, and doesn’t dare wait until after the birth to start chemotherapy. Maybe the fetus has failed to develop in some way that dooms it to a short and pain-filled life. Maybe the fetus is already dead.

A million things can go wrong in the final months of pregnancy. Good luck anticipating all of them and writing all the appropriate exceptions into a law, much less making sure that law is applied compassionately in emergency situations.

So while Mike Pence is right that abortion is “a moral issue”, it is the height of arrogance to imagine that we, while sitting on our sofas watching a debate, can decide those complex moral issues better than the people who are actually there and know all the special circumstances.

State governments that opt out of the N-week framework are not “allowing” heartless moms to kill healthy babies about to be born. Instead, they are yielding to the judgment of people who are in a better position to weigh the complicated moral questions a late-term abortion invariably involves.

Restoring the rights protected by Roe. So OK, I have just defended a position that a hostile adversary could smear as “allowing abortion up to the moment of birth”. But a second point is worth making: Despite what the debaters repeatedly claimed, I’m an outlier. The vast majority of elected Democrats aren’t willing to go that far.

The best evidence of what most Democrats want is the bill they tried to pass last year: the Women’s Health Protection Act of 2022. That bill passed the then-Democratic House before getting derailed by a Republican filibuster in the Senate. It had President Biden’s support. The WHPA eliminated prohibitions on abortion “at any point or points in time prior to fetal viability”, and also prohibitions “after fetal viability when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health”.

In other words, it put the law back more or less to where it had been before Roe was reversed last summer. Nothing in it allowed “abortions on demand up until the day of birth”.

Polls. In every poll or election where it has been tested, restoring the pre-Dobbs configuration of reproductive rights is an extremely popular position. So anti-abortion advocates are trying very hard to pretend that this option doesn’t exist. If you watched the debate, you would never have guessed that anyone, much less President Biden, wants to restore precisely the rights the Supreme Court took away.

Mike Pence claimed at one point that a 15-week ban is “supported by 70% of the American people”. When challenged on this, his staff pointed to a poll conducted on behalf of an anti-abortion group, Susan B. Anthony Pro-Life America.

In fact, Pence understated the poll’s result: 77% wanted either a 15-week ban or something even more restrictive. But here is the question the respondents were asked:

Which of the following best describes your position on the abortion issue?

  • Abortion should be prohibited throughout pregnancy, with exception for the life of the mother, rape, and incest. (26%)
  • Abortion should be prohibited after a baby’s heartbeat can be detected at 6 weeks of pregnancy, with exception for the life of the mother, rape, and incest. (20%)
  • Abortion should be prohibited after a baby can feel pain at 15 weeks of pregnancy, with exception for the life of the mother, rape, and incest. (31%)
  • Abortion should be allowed throughout all 9 months of pregnancy, without any restrictions. (15%)
  • I’m totally unsure. (8%)

There’s so much wrong with this question I don’t know where to start. First off, respondents are asked to respond to “facts” that are not facts. Embryos (not babies) don’t have a heartbeat at 6 weeks. And the idea that fetuses (also not babies) can feel pain at 15 (or even 20 or 25) weeks is highly speculative and not the current medical consensus. [4]

But perhaps worse than the biased wording is that no option corresponds to the rights women had 15 months ago. If you aren’t for banning abortion at 15 weeks or earlier, the only other choice is essentially “abortions on demand up until the day of birth”.

A similar poll was conducted by Cygnal, with a headline result that “Majority support abortion ban”, fleshed out in the press release to “56% of voters support a federal abortion limit of 15 weeks (23% oppose; 21% unsure), including a plurality of Democrats.”

How did they come up with that? The same way Susan B. Anthony Pro-Life America did, but with even fewer options. The question they asked respondents was:

Do you support a federal 15-week ban on abortions with an exception for rape, incest, and life of the month or support allowing abortion up until the point of birth?

Can Republicans “go on offense”? That’s the advice from Kellyanne (“Alternative Facts“) Conway in a WaPo column the morning after the debate. “If they want to win, Republicans need to go on offense on abortion“.

If you probe into the column, “go on offense” means what it usually does with Conway: bury voters in bullshit. She repeats the 6-week-heartbeat and 15-week-pain canards, and claims

Democrats are making a radical push for abortion on demand throughout pregnancy and will try to put some version of that question on the ballot in the coming election.

An obvious way to back this point up would be to point to some abortion-until-birth ballot proposal Democrats are gathering signatures for in some state or another. But Conway doesn’t, because there is none.

She quotes the Cygnal poll (whose biased question I just quoted) claiming that a majority support a 15-week ban. She advocates pushing Democrats the way Nikki Haley did, with “Is there any abortion they find objectionable?”, as if refusing to usurp a woman’s decision is the same as agreeing with every decision a woman could conceivably make (even if no women are actually choosing whatever hideous option Republicans might imagine).

So that’s what’s coming: an avalanche of anti-abortion bullshit. Get your wading boots ready for it.

[1] Pence rooted his position in his religion:

After I gave my life to Jesus Christ as my Lord and Savior, I opened up the book and I read, “Before I formed you in the womb, I knew you” and “See, I set before you life and death, blessings and curses. Now choose life.” And I knew from that moment on the cause of life had to be my cause.

Here Pence demonstrates the back-flips you have to do if you want to claim that the Bible denounces abortion: He takes two quotes out of context and smushes them together so that they seem to say something neither one says.

The two verses are Jeremiah 1:5 and Deuteronomy 30:19. In Jeremiah 1, God tells Jeremiah about his longstanding plan that Jeremiah be “a prophet to the nations”. The focus is on God’s foresight and Jeremiah’s special destiny. The text says nothing at all about any fetus in a womb today.

Deuteronomy 30 centers on those “blessings and curses”: God promises to make a great people of the Israelites if they obey the laws he has just given them, but threatens to wipe them out otherwise. (Moses had to talk God out of such a genocide in Exodus 32 after the golden calf incident. After some coaxing, God was satisfied with three thousand deaths rather than the whole nation.) Read in its proper context, “choose life” means “Don’t disobey and make me kill you.” Again, it’s got nothing to do with abortion.

Invariably, when I make a point like this, someone will object that we shouldn’t argue Biblical interpretation in a political arena, because the Bible plays no legal role in governing the United States. And that’s true: The US Constitution is an entirely secular document. The Founders were almost all Christians of one stripe or another, but they were well aware of the wars of religion that had plagued England and wanted to avoid anything similar happening here.

That said, though, I think that when a politician or a party makes an argument that is invalid in its own terms, it’s worth calling out — even if those terms have no legal standing. So when I see it, I call out bad religion in the same way that I call out bad science.

And politically, I don’t want to see the abortion issue framed as Christians vs. non-Christians or Bible-believers vs. everyone else. Anti-abortion is unrelated to the Bible, except through speculative interpretations that no one would put much stock in if they read the text without prior convictions.

[2] As we’ve seen in the states, these exceptions often are not all they’re cracked up to be. Even if your case seems to fit an exception, you still may not be allowed an abortion.

[3] In 2019, the CDC counted 4,882 abortions after 21 weeks in the whole country, or slightly less than 1% of all abortions. Normalizing for the handful of states that didn’t report, I’ve seen estimates that the number of post-21-week abortions could be as high as 6,000 a year.

[4] The short version of the argument against pain-at-15-weeks is that the nerve clusters that would report pain are not yet hooked up to the brain centers that would recognize it.

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The Party of False Equivalence

July 24, 2023 – 11:27 am

The No Labels target voter is a moderate Democrat who watches too much Fox News.

Over the weekend, former Maryland Governor Larry Hogan appeared on a number of interview shows, where he denied he would run for president as a Republican, but hinted at being available for a third party. Friday, he tweeted something that sounded a lot like an endorsement of the No Labels view:

We have two very unpopular potential nominees, and both of them potentially face very serious legal troubles.

The word potentially does a lot of work here. Donald Trump is facing multiple felony indictments, and probably will be charged with several more in the next week or two. Meanwhile, it would be a huge shock if the special prosecutor investigating the classified documents Biden voluntarily returned to the government recommended charges. Beyond that, House Republicans have floated a number of conspiracy theories about Biden’s alleged crimes, but their evidence has a way of going poof when they try to back those claims up.

Practically the same thing, right? Two men with “very serious legal troubles”. Potentially.

You often run into these sorts of false equivalencies when you listen to No Labels people. Last Monday, Joe Manchin and Jon Huntsman made a joint appearance to tout the new “Common Sense” platform of the No Labels Party. (The two are widely expected to form a No Labels presidential ticket in 2024, though which would be on top is still undetermined.)

It’s easy to write off No Labels as a spoiler that could allow Donald Trump to regain the presidency with minority support, or to criticize its dark money support from people with unknowable intentions. But it has a story to tell that many Americans find appealing: Most of our country’s problems have simple common-sense solutions that can’t be implemented because the two parties are controlled by their extremist wings. We need a bipartisan coalition of moderates to break through the logjam.

So I decided to take No Labels seriously enough to read the “Common Sense” booklet that Manchine and Huntsman were touting. What exactly are these “common sense solutions” that only a third party can implement?

What I found, with only a few exceptions, are moderate Democratic positions that few if any Republicans in Congress would vote for. A handful of No Labels positions would give progressive Democrats heartburn, but might get a lot of Democratic support if paired with enough of the Democratic ideas in the booklet. My guess is that if the substantive proposals in the booklet were sent to Congress for an up-or-down vote, it would narrowly fail, getting the support of maybe 3/4ths of Democrats and a handful of Republicans.

This is what makes No Labels dangerous on the 2024 ballot: Trump voters will reject them out of hand, but a slice of Biden voters won’t.

The Biden voters who could be peeled off, in my view, are those (predominantly older) ones who watch a little too much Fox News and so have a collection of false ideas: that Biden is senile or “faces very serious legal troubles”, that election security is a real problem that voter ID laws can solve, that the Twitter files showed a serious government effort to silence its critics, that Biden will take away their guns, and so on.

Why aren’t there more moderate coalitions? Before I get into any of that, though, a history lesson: The reason moderate coalitions in Congress don’t come together to forge compromise solutions is that recent examples are cautionary tales, particularly for Republicans.

In 2013, four Republican and four Democratic senators formed the “Gang of Eight” to work out a compromise on one of the country’s most contentious issues: immigration. And in short run, they succeeded. They wrote a bill that passed the Senate 68-32.

Impressive as it was, though, that 68-vote bipartisan consensus contained the seeds of the bill’s eventual demise: It wasn’t really a down-the-middle vote. Instead, 14 Republicans joined all the Democrats. So when the bill got to the House, it was viewed not as a common-sense compromise, but as a Democratic bill that 14 Republican traitors had supported. So Speaker John Boehner, a Republican, never brought it up for a vote. In the 2016 Republican presidential primaries, one of the bill’s provisions — a path to citizenship for undocumented immigrants — was labeled “amnesty” and became such a hot-button issue that Gang-of-Eight member Marco Rubio had to denounce his own bill.

Comprehensive immigration reform has been dead ever since.

That outcome is typical, because bipartisanship is not a bipartisan value: Democrats recognize the need to compromise to make progress (as they did numerous times to get the bipartisan infrastructure bill passed). But Republicans don’t. The reason a handful of Republican extremists were able to hold Kevin McCarthy hostage during the election of the speaker was that making a deal with Democrats to get the last few votes he needed was unthinkable. Democrats have cooties. Working with them is dangerous for Republicans.

So No Labels is right in that we do need more bipartisan compromises. But the two parties are not equally to blame. Democrats are willing to compromise, but Republicans aren’t.

No Labels positions that are suicidal for Republicans. No Labels wants to bring the federal budget gradually into balance. (So does Biden.) The Common Sense booklet (CS) envisions something like the solution proposed by the Simpson-Bowles Commission of 2010, which it describes as a “mix of modest spending cuts and revenue increases”. Of course, Simpson-Bowles failed largely because most Republicans in Congress had signed a pledge against any tax increases, no matter how many spending cuts they were paired with. So no compromise with them was possible. I’m not sure anything has changed.

The CS immigration position resembles the Gang of Eight compromise: more legal immigration, more judges to process asylum applications faster, and a path to citizenship for the Dreamers.

On healthcare: Let Medicare negotiate with drug companies.

On gun control: No gun purchases by people under 21. Close the loopholes in the background check system.

On defense and foreign policy: a globalist foreign policy that values our allies in NATO and elsewhere. Some Republicans would agree, but not the America-first faction.

On culture wars: CS supports access to abortion, but not late-term abortions. It refuses to draw a firm line where restrictions might start. Trans rights are affirmed, along with more parental control over what children are taught about gender issues, whatever that means.

CS positions that Democrats won’t like, but could accept as part of a package. The biggest headache CS would give Democrats is on energy, where it prioritizes keeping energy costs low over replacing fossil fuels, and pushes for more nuclear power. Favoring clean energy is good, but keep developing fossil-fuel resources as well.

On Social Security, CS wants to means-test benefits for people who are currently in their 40s or younger. Whether tax increases are part of making Social Security solvent long-term is left vague.

The healthcare proposals nibble at the problem rather than going big in a Medicare-for-All fashion. Reforming the malpractice tort system is one proposal, which would offend a major Democratic constituency (lawyers) without accomplishing a whole lot.

The one piece of immigration reform Democrats would have trouble swallowing is reinstating the remain-in-Mexico plan for asylum seekers.

The education plan calls for more charter schools.

Voter ID laws, but with an emphasis on government responsibility for making IDs free and easy to get. (I have a hard time imagining what such a proposal would look like. Literally every voter-ID law I’ve seen has been a voter-suppression law.)

False equivalence. So as you can see, there are things to like and not like for both parties. But the two are not equal. A Democrat like Manchin could run on this package in a red state like West Virginia. Most other Democrats wouldn’t campaign for him, but he probably wouldn’t (and won’t) face a primary challenge.

Conversely, no Republican could run on this package without being thrown out of the party. Even in a blue state like Massachusetts (where I am now), it would be political suicide.

On the presidential level, No Labels is running in Biden’s lane. People who voted for Biden expecting him to be just a little more conservative may find them appealing. But on the flip side, I don’t think they’ll peel away any voters from Trump. Some never-Trump Republicans (like Huntsman and Hogan) may vote No Labels rather than stay home or leave the presidential line blank. But they were never going to support Trump in 2024.

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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 | Posted in Articles | Also tagged | Comments (12)

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.

By weeklysift | Posted in Articles | Also tagged | Comments (19)