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The whirlwind

Supreme Court nominee Judge Brett Kavanaugh gives his opening statement before the Senate Judiciary Committee, Thursday, Sept. 27, 2018 on Capitol Hill in Washington. (Saul Loeb/Pool Image via AP)

“And as we all know, in the United States political system of the early 2000s, what goes around comes around. . you sowed the wind, now I fear that the whole country will reap the whirlwind.”  — Justice Brett Kavanaugh at his confirmation hearing.

Amy Coney Barrett was sworn in tonight. She will not recuse from the election cases. You know how Dear Leader feels about that.

And tonight the Supreme Curt (without Coney Barrett) decided that Wisconsin cannot count ballots that arrive after election day.

Brett Kavanaugh wrote a separate concurrence:

It is going to be very radical. So radical that they may just think they can steal this election:

Although George W. Bush prevailed in the Bush v. Gore decision, it’s often forgotten that the Supreme Court declined to affirm his chief legal argument. This claim was so radical, so contrary to basic principles of democracy and federalism, that two conservative justices stepped back from the brink. Instead, the majority fabricated a novel theory to hand Bush the election—then instructed lower courts never to rely on it again.

But the court has changed. Republican lawmakers revived the original Bush v. Gore argument in fraught election cases this year, and, following Amy Coney Barrett’s nomination, four sitting justices appeared to endorse it. Barrett’s confirmation on Monday will almost certainly tip the balance to make that argument the law of the land on the eve of an election. The result would be an immediate invalidation of thousands of disproportionately Democratic ballots in Pennsylvania and North Carolina—two swing states that could decide the outcome of the election. Put simply, Barrett’s first actions on the court could hand Donald Trump an unearned second term, and dramatically curtail states’ ability to protect the right to vote.

Most Americans know that, in Bush v. Gore, the Supreme Court effectively ruled that Bush would be the next president of the United States. But few can likely explain the court’s justification for that holding, and for good reason: It doesn’t make any sense, and the Supreme Court has not invoked it since. In an unsigned opinion that allegedly spoke for the five conservative justices, the court held that Florida’s recount used procedures that violated “the equal dignity owed to each voter.” Because the standards used to recount ballots varied between counties, the court concluded, the process violated the U.S. Constitution’s equal protection clause. Then, in an unprecedented move, the court declared that this analysis was a ticket good for one ride only, and that lower courts should never invoke its made-up principle again. This disclaimer acknowledged that SCOTUS had never applied such strict scrutiny to ballot tabulation and never would again

This rationale shocked legal observers at the time, because Bush’s lawyers had barely bothered to raise it. It was an afterthought in their briefings and oral arguments, a backstop tacked onto their chief argument: that, in ordering a recount, the Florida Supreme Court had unconstitutionally usurped the authority of the Florida legislature. This argument was so extreme that Justices Sandra Day O’Connor and Anthony Kennedy refused to support it, leaning instead on the risible equal protection rule that carried the day.

But the other three conservative justices—William Rehnquist, joined by Antonin Scalia and Clarence Thomas—embraced it in a separate opinion. Rehnquist’s concurrence rested on the electors clause of the Constitution, which says that “Each State shall appoint” presidential electors “in such Manner as the Legislature thereof may direct.” He accused the Florida Supreme Court of having “impermissibly distorted” the state’s election code when it ordered a recount. Because the court ran afoul of the “clearly expressed intent of the legislature,” Rehnquist concluded, it had violated the electors clause.

Rehnquist’s position constituted a breathtaking assault on state sovereignty. It is black letter law that state courts hold ultimate authority to determine the meaning of their own state’s statutes and constitution. And the Florida Supreme Court had simply provided its best interpretation of a “legal vote” under Florida law. Secretary of State Katherine Harris rejected ballots with “hanging chads” on which voters had indicated their preference but failed to punch through the hole all the way. The Florida Supreme Court disagreed, citing a state statute that required the counting of defective ballots “if there is a clear indication of the intent of the voter.” Federal judges had a constitutional obligation to accept that (eminently plausible) reading of the law. By refusing to do so, Rehnquist, along with Scalia and Thomas, impermissibly substituted the Florida Supreme Court’s judgment with their own.

After the 2000 election, Rehnquist’s concurrence faded into the mists of history, and for good reason. It would, after all, transform SCOTUS into a national board of elections with veto power over each state’s election rules. Rehnquist’s position was categorically distinct from typical election cases, in which federal courts decide whether some regulation complies with the U.S. Constitution and federal statutes like the Voting Rights Act.  Rather than defer to state courts protecting the franchise, SCOTUS would grant itself freewheeling authority to rewrite election laws based on its own subjective sense of a legislature’s intent. And a right-leaning Supreme Court could use this power to crush state efforts to expand voting rights. Since 2000, there has always been at least one conservative justice who would not go along with this power grab.

Until now. By confirming Barrett on Monday, Senate Republicans may well create a five-justice majority that is ready, willing, and able to make Rehnquist’s position the law of the land. There are currently two cases pending before SCOTUS that ask the justices to nullify thousands of mail ballots in Pennsylvania and North Carolina. Both rest on Rehnquist’s Bush v. Gore concurrence. Both give the far-right majority a chance to stomp on states’ ability to protect voting rights.

These cases present similar claims. In Pennsylvania, the state Supreme Court ordered officials to count mail ballots that are sent by Election Day and arrive by Nov. 6. In North Carolina, the state board of elections, with approval from the state judiciary, ordered officials to count mail ballots that are sent by Election Day and arrive by Nov. 12. These decisions rested on interpretations of state law passed with the participation of the legislature. There is nothing unusual, let alone unconstitutional, about them.

Yet four SCOTUS justices—Thomas, Alito, Gorsuch, and Kavanaugh—voted to block the Pennsylvania ballot deadline extension on Oct. 19. (Update: Gorsuch and Kavanaugh endorsed Rehnquist’s position in Bush v. Gore on Monday night.) Because Chief Justice John Roberts sided with the liberals, the court split 4–4, upholding the extension. But Pennsylvania Republicans quickly came back to SCOTUS and asked for a do-over in light of Barrett’s imminent confirmation. They are plainly banking on Barrett joining the ultraconservatives to scrap the extension.

The story is similar in North Carolina. Three conservative judges on a federal appeals court voted to block the state’s deadline extension, too. These judges, citing Rehnquist’s Bush v. Gore concurrence, urged the plaintiffs to take their case to SCOTUS “immediately.” Republicans complied, timing their request to ensure that Barrett would be able to hear it. Like their Pennsylvania counterparts, North Carolina Republicans believe Barrett will prevent their state from counting late ballots.

In other words, Barrett’s first decisions as a justice may determine the outcome of the election. Late-arriving ballots skew disproportionately Democratic. FiveThirtyEight reports that Pennsylvania or North Carolina may be the “tipping point state,” or the state that delivers the 270th vote in the Electoral College. If Barrett blocks the deadline extensions, she will force these states to throw out a large number of ballots that were mailed on time but arrive late. In a close race, those ballots could be decisive.

Election law expert and Slate contributor Rick Hasen has provided two reasons why SCOTUS should turn away the Pennsylvania case, both of which apply to the North Carolina case, too. First, it’s quite late in the day for the court to change the rules; voters have come to rely on the deadline extension, and it would be unfair to pull the rug out from under them. Second, it would seem that only the legislature has standing to claim that courts have usurped its power, but the legislature is not a plaintiff in either case.

But the Supreme Court can do whatever it wants when it has five votes.

The only thing that will absolutely save us is if Democrats win outright on election day. I don’t know if they’ll let them do it. But they have to try.

The New Resistance

He was sent to us': at church rally, evangelicals worship God and Trump |  US news | The Guardian

If Donald Trump loses, these people aren’t going away — because they’ve always been there. They’re just getting more overtly political. He has shown that you can let it all hang out and nothing will happen to you.

The Republican Party is going to be an openly Christian Nationalist Party:

The new congregation is gathered in a barn in Lenoir City, Tenn., with a roof that has a 60-foot American flag painted on it. And they are praying for a Trump landslide.

Standing in a circle, the dozen or so men and women, young and old, lay their hands on their pastor, Ken Peters, as he raises their requests to God.

He prays that “communism and socialism and transgenderism and homosexuality and abortion will not have their way in this land.”

“Yes, Lord,” someone cries.

He prays that the nation’s “Christian roots” will remain, that the church of Jesus Christ will be a “restraining power.”

“God, this nation is a miracle for you,” Peters continues. “You rescued us, and you gave us our independence for a purpose.”

This is a Patriot Church, part of an evolving network of nondenominational start-up congregations that say they want to take the country back for God. While most White conservative Christian churches might only touch on politics around election time and otherwise choose to keep the focus during worship on God, politics and religion are inseparable here. The Tennessee congregation is one of three Patriot Churches that formed in September. The other two are near Liberty University in Lynchburg, Va., and in Spokane, Wash., and Peters says he is talking with several more pastors of existing churches who want to join them.

The 50 or so people in attendance may identify as born-again or just as generic “Bible-loving” Christians. Peters’s flock is not affiliated with a specific denomination, but it does have a distinct identity. The Patriot Churches belong to what religion experts describe as a loosely organized Christian nationalist movement that has flourished under President Trump. In just four years, he has helped reshape the landscape of American Christianity by elevating Christians once considered fringe, including Messianic Jews, preachers of the prosperity gospel and self-styled prophets. At times, this made for some strange bedfellows, but the common thread among them is a sense of being under siege and a belief that America has been and should remain a Christian nation.

From his lectern during the worship service, Peters rails against perceived attacks on First Amendment freedoms, decrying government mandates and calling masks “face diapers.”

Having launched the Patriot Church outside Knoxville, Tenn., on the weekend of Sept. 11, he declares that the Christian faith in America is “under attack.”

“Black Lives Matter isn’t being powered by the Holy Spirit. Antifa isn’t being powered by the Holy Spirit. They can’t save this land,” Peters says. “There’s only one organization that has a shot at saving America, and that’s the church of Jesus Christ.”

For many churchgoers in suburban Knoxville, the political boldness in worship is a breath of fresh air. They complain that social media restricts their free speech, and they fear government-mandated vaccines. And whether Trump wins or loses, religion experts believe these Americans are building powerful networks that are expected to endure long after Trump has left the White House.

Yeah well, they can’t escape the fact that they have been worshipping an immoral monster. So, let’s just call it what it really is: white nationalism.

Yes, it was the Comey letter

Ex-FBI Director James Comey violated DOJ policies with Trump memos, IG says

I think it’s important to remember what really happened in 2016. The election was so close that you could find a dozen things that could have changed the outcome. But really, it was the Comey letter.

This interview with Devlin Barrett of the Washington Post, who has written a new book about it, is a fascinating look back at an event that never should have happened. It changed the world for the worse. And I don’t think James Comey has ever really understood that:

A running joke of this presidential election year has been to acknowledge the speed and proximity of big, head-spinning events—this happened, and that happened, and it’s only Wednesday—but memories have smoothed out the similar chaos of the last presidential election year.

On Oct. 7, 2016, at 3:30 p.m., the CIA released a bombshell statement that the Russian government had been behind numerous email-hacking incidents and was threatening to disrupt the upcoming election. An hour later, the Washington Post posted audio of Donald Trump telling Access Hollywood reporter Billy Bush, “When you’re a star, they let you do it. You can do anything. Grab ’em by the pussy. You can do anything.”

Over the next month and right through the 2016 election, the hits would keep coming: Donald Trump pal Roger Stone’s revelation of “back-channel communication” with email leaker Julian Assange; the FBI’s continuing investigation of Trump foreign-policy adviser Carter Page (that would not become public until after the election); the revelation that the FBI had discovered tens of thousands of Hillary Clinton’s “missing” emails on former Rep. Anthony Weiner’s laptop; the further revelation that those emails were essentially meaningless; and the Election Night stunner that Donald Trump would become the next president of the United States.

Washington Post reporter Devlin Barrett recounts those events from deep inside an embattled and politicized FBI in his new book October Surprise: How the FBI Tried to Save Itself and Crashed an Election. Barrett sat down with The Daily Beast to talk about how—and why—former FBI director James Comey unwittingly steered the 2016 election to Donald Trump and whether the still-reeling FBI will ever recover.

Did you conclude that the FBI changed the outcome of the 2016 election?

I did, and I put a lot of thought into that. After looking at the polling numbers and talking to people who were watching the polling numbers in real time, I was convinced that James Comey’s letter of Oct. 28 tipped the balance to Trump.

Why did Hillary Clinton have a private email server when she was Secretary of State?

She has said that she did it for the sake of convenience, and there’s probably some truth to that. She came to the State Department from the Senate, where her emails were not subject to the Freedom of Information Act the way they would be in the Executive Branch. She and her staff viewed the private server as a way to shield themselves from the FOIA laws, and they grossly misjudged what the consequences of that would be.

Did she also have a State Department email address?

She did not. She never made the bare-minimum gesture of doing some of her work on a State Department email address.

The discussion of Clinton’s email server during the 2016 campaign was that 33,000 of Clinton’s emails were “missing.” Where were they?

The FBI determined that Clinton sent 60,000 emails when she was Secretary of State. About half of those were turned over to the State Department in response to FOIA requests, and the other half were deleted as personal or not otherwise related to State Department work. An official responding to a FOIA request can determine whether certain emails are government records. You could argue whether that’s a good rule or not, but that’s the rule.

Clinton’s lawyers deleted the emails that they determined to be unrelated to official work, and that creates an obsession on the right about finding the 33,000 emails. The deleted emails became a Holy Grail that would supposedly prove corruption at the Clinton Foundation and supposed health problems if anyone could ever find them.

Was James Comey acting according to FBI and Justice Department rules when he had a press conference in the summer of 2016 to announce the end of the investigation?

That was definitely not in keeping with Justice Department policy, and he now essentially concedes that point. His argument was that the investigation was so important and so unusual that he had to go beyond the regular practice of not commenting publicly on investigations. He announced that the FBI would not recommend any criminal prosecution.

Does the FBI ordinarily make a recommendation about whether to charge someone?

They do, but that would ordinarily be a private process. That’s generally a conversation between the FBI and the Justice Department with the Justice Department making the final call as the prosecuting authority. Comey effectively made the decision himself, which is why people at the Justice Department were and still are furious with him about that.

So that happened during the summer of 2016, and then in the fall the FBI determined that Anthony Weiner, who was married to one of Clinton’s top aides, had tens of thousands of Clinton’s emails on his computer. What did you make of Comey disclosing that with a letter to Congress?

I think he sent the letter to Congress to give himself some cover that he was not making a press announcement, but that’s fairly disingenuous. Within a minute of that letter going up to the Hill, a member of Congress was tweeting it out.

He was commenting on an ongoing investigation, which was a bigger violation of FBI guidelines than commenting on the end of an investigation.

Right, absolutely. He was reopening a case that everyone thought was closed, and he made, essentially, a public announcement about the investigation of a presidential candidate 11 days before the 2016 election. He justified it because, one, he didn’t think Trump would win, and, two, he wanted to make sure that the Republicans wouldn’t come for him after the election.

When Comey sent another letter to Congress saying the FBI didn’t find anything of any significance on Anthony Weiner’s computer, that didn’t have the impact of a press conference.

No, and at that point he felt like saying anything about Clinton’s emails would be bad for her. Clinton’s own pollsters have said that any story about her emails was bad for Clinton. Even absolving her publicly for a second time was politically bad for Clinton.

That’s a pretty grim place for the director of the FBI to find himself. The fact that he ever talked publicly about the emails put him in an untenable position.

It’s unbelievable. The original sin was the press conference in July; once he says those things on the record—on television—he was beholden to updating it with facts as they happened. To this day, a lot of people at the Bureau do not understand how he thought that it would go any way other than awful.

Parallel to the Hillary Clinton investigation, the FBI was investigating a Trump associate named Carter Page. What was that about?

The Trump campaign added him to its list of foreign-policy advisers at a time when it was desperate to find foreign-policy people willing to associate their names with Donald Trump. The FBI had long-running concerns about Page for reasons that involved Russia but had nothing to do with the Trump campaign; those concerns became more intense when he became involved with the Trump campaign.

Donald Trump has been saying during the 2020 campaign that Barack Obama “spied” on him during the 2016 campaign. What is Trump referring to?

He is referring to the use of informants to surreptitiously record and question Carter Page and a lower-level aide named George Papadopoulos. I think what Trump is trying to say is that the investigation of those aides was unfair and unfounded.“


The FBI announced it was investigating Hillary Clinton’s emails, announced two weeks before the election that it was reopening that case, and didn’t announce anything about investigations that would lead to federal convictions for several people close to Donald Trump. Has the FBI reckoned with what it did?

I think things have changed. The FBI is trying very hard this year to stay out of the election, and that’s with President Trump calling for the FBI to make investigations and arrests within a month of Election Day.

What do you think would be the focus of the Justice Department and FBI under a President Biden?

If Joe Biden wins, a big question is going to be how much house-cleaning to do. There’s generally a view that a new administration would need a fresh start because of how politicized the Justice Department and FBI have become in the Trump years, but you run the risk that you focus all of your energy on that.

There is the possibility that you can never stop the politicization of the FBI because it’s so valuable politically; it’s already made someone president. How will you ever get the two political parties to stand down from that?

Preet Bharara, who was formerly the United States Attorney for the Southern District of New York, told me in 2019 that he thinks Trump will eventually be prosecuted for the campaign violations that sent Michael Cohen to prison.

That will be probably the biggest decision that a Biden administration’s Justice Department would have to make.

That and potentially hundreds of counts of obstruction of justice against Donald Trump and members of his administration.

For sure. Those are huge choices, and there are huge constituencies on both sides of those choices that will make them difficult choices. I don’t know if Preet is right about that; there are huge political and institutional costs to prosecuting an ex-president. That would be the mother of all fights over politicization of the Justice Department, and it could make that politicization permanent.

My bet has been for months that they would not have the guts to prosecute Trump, particularly after Trump spent his entire campaign threatening to prosecute his predecessor and political opponents and Democrats have been accusing him of turning the US into a banana republic because of it. It was a trap. Democrats should ignore their caterwauling about hypocrisy but I doubt they will.

This is why I’m in favor of some kind of independent presidential crime commission that lays out ALL the corruption and other criminality as well as the destruction of important norms and rules. I just doubt that the Department of Justice will be willing to go here unless a case they already have going is ready to pop after the inauguration.

I do think that the Trump crime family may be in trouble with the State of New York, possibly the SEC/ IRS and, who knows, maybe some foreign courts. It would be very, very nice if they, at the very least, lost a whole lot of money.

I don’t mean to say that I don’t they should be prosecuted. They should! And I will be thrilled if the new AG decides that the evidence of criminality is so overwhelming that they have to go ahead. In a normal world it wouldn’t be a question. I’m just afraid that Trump and Barr’s lawless politicization of the DOJ has had the perverse effect of inoculating Trump against prosecution after he’s left office.

But there are many ways of getting accountability. And America should pursue every avenue they have to get it. If we don’t, we’ll regret it. There are always wingnuts and Trump showed them a new path: they don’t need to even pretend to have ethics and their followers will be fine with it.

The “see no virus” strategy

Trump has always lied, we know that. And he often lies in an obvious way. But this is something else again. He’s telling people that COVID is no longer a problem. It should be criminal for him to do this.

A.T. Rupar at Vox, documents the atrocity:

With the pandemic getting worse, not better, President Donald Trump tried to turn reality on its head during a series of rallies on Saturday in North Carolina, Ohio, and Wisconsin.

“We’re rounding the turn. Our numbers are incredible,” Trump claimed in Lumberton, North Carolina, before blasting the media for its alleged fear-mongering.

But the US is not rounding a turn for the better. Friday and Saturday saw new daily coronavirus infections in the US surge past 80,000 for the first time ever. And it’s not just cases — hospitalizations are up more than 33 percent over the last month, and the seven-day average of deaths is now back above 800.

“That’s all I hear about now. Turn on television, ‘Covid, Covid, Covid Covid Covid.’ A plane goes down, 500 people dead, they don’t talk about it. ‘Covid Covid Covid Covid.’ By the way, on November 4, you won’t hear about it anymore,” Trump said. (In case it’s not clear, the plane crash he referred to was made up.)

Then, on Saturday night in Waukesha, Wisconsin, Trump argued, falsely, that the main reason cases in the US are going up is because the US does so much testing — “if we did half the testing, we’d have half the cases,” he said, as if testing causes cases — and insisted the coronavirus is “going away.” (In recent weeks, new cases have actually grown at a much faster rate than testing has expanded.)

Not only is Trump’s rhetoric irresponsible, but the fact is, he’s holding rallies that make a mockery of social distancing and mask-wearing guidelines recommended by his own government. And these rallies appear to be actively making the pandemic worse by spreading the virus.

Perhaps the strongest evidence of this came on Friday, when Erin Mansfield, Josh Salman, and Dinah Voyles Pulver authored a piece for USA Today that examined how coronavirus cases surged in a number of places where Trump recently held rallies.

From the article:

The president has participated in nearly three dozen rallies since mid-August, all but two at airport hangars. A USA TODAY analysis shows COVID-19 cases grew at a faster rate than before after at least five of those rallies in the following counties: Blue Earth, Minnesota; Lackawanna, Pennsylvania; Marathon, Wisconsin; Dauphin, Pennsylvania; and Beltrami, Minnesota.

Together, those counties saw 1,500 more new cases in the two weeks following Trump’s rallies than the two weeks before – 9,647 cases, up from 8,069.

But to the extent that Trump actually engages with this reality, his message is that people have to learn to live with it.

“You have to lead your life, and you have to get out,” he advised his fans on Saturday in Ohio.

Beyond the mounting human toll — more than 220,000 Americans have now died from the coronavirus — the latest spike in cases comes at a politically inopportune time for the White House, with Election Day now just nine days away.

But at this point, the Trump administration isn’t even pretending to have a plan to slow the spread of the virus. Instead, during a CNN interview on Sunday, White House Chief of Staff Mark Meadows said, revealingly, that “we’re not going to control the pandemic.”

Meanwhile, the White House is dealing with yet another cluster of cases — five people close to Vice President Mike Pence have tested positive for the virus in recent days. Pence, the chair of the White House coronavirus task force, was exposed. But instead of following Centers for Disease Control and Prevention guidance, which calls for exposed people to self-quarantine for 14 days, he plans to travel to pandemic rallies on Sunday and Monday.

They’re holding another Amy Coney Barrett event at the White House for her swearing in.


It’s not gatekeeping, it’s journalism

How Facebook plays content gatekeeper - Digiday

The New York Times’ Ben Smith has a bombshell column today revealing that the White House and some other political operatives thought they had the Wall St Journal news pages all teed up with a story about Hunter Biden and his emails. The idea that people from the White House counsel’s officer were involved in a campaign smear job is shocking and there’s not much left that shocks these days.

The Journal ended up publishing a small story which stated there was no proof that Joe Biden had done anything wrong after Rudy Giuliani spilled the dirt in the New York Post. It’s one of the rare occasions in which the mainstream media refused to accept the juicy, hand-fed tid-bits of scandal and gossip the right wing feeds them.

Smith goes on to say that this represents the return of the “media gatekeeper” which those of us in the early days of blogging and internet journalism were fighting against. I disagree. This is an example of the mainstream media refusing to allow the right wing to work the refs and accept their narratives and story angles for fear of being called “biased.” It’s a return to journalism.

Anyway, Josh Marshall had a good twitter thread on this topic that speaks for me:

This is a very good column. And it includes details of what sounds like yet more White House lawbreaking. But I disagree with Ben that this is a reassertion of an elite media gate keeping role. There’s hardly a blackout of the purported hunter biden hard drives. There are lots of stories about it in msm publications. Not to mention the fact that I think it’s dubious to say that fox, wsj, nypost et al aren’t part of the elite press. The key is really who decides what the story is.

For decades the elite political press has been wired for the GOP. This has been true for a number of reason. But the upshot is a pattern that right media defines what the question and then more elite corporate media engages that question, even if their conclusions are sometimes different.

The fact that the gaming rogue Bannon was able to fund a deeply tendentious, error-riddles loaf of poo by this clown Schweitzer and have it run in the countries two most influential news publications as hard news was the ultimate example of this pattern. [He’s talking about “Clinton Cash” which ran in 2016 “in partnership” with the NY Times and the Washington Post, an egregious example of this practice.]

The Wikileaks drama is a different sort of example. It’s not just we now know that it was the product of a Russian intelligence operation which involved the Trump campaign. It’s more that there really wasn’t anything in them that was remotely controversial. That didn’t stop most elite media from being transfixed by them as if they were. That’s largely because the right media ecosystem said so. And elite media was scared to say otherwise. With this laptops story the two examples collide. What’s the story?

Well, the story seems pretty obviously to be another dirty tricks operation either run by the Presidents pals in Russia or stateside criminals working on his behalf. So do reporters explode with yada yada! Hunter Biden yada! It’s probably all fake but it raises question and how will it effect the horserace?

Or do they see whether the basic facts are confirmable (they aren’t) and look to the fairly obviously story: an almost absurd attempted replay of the 2016 games. This isn’t gatekeeping. It’s reporting.

This isn’t like the news media that simply refused to report on jack Kennedy’s numerous affairs because it wasn’t suitable for print. That’s gate keeping. The Journal story at the center of Bens piece really tells the tale. They published a story. They didn’t hide anything or sit on anything.

They just embarrassed the Trump team because they reported it out and didn’t just repeat credulous what Bannon brought them like the Times and WaPo did in 2016.

We see it as gatekeeping because again elite media has been largely wired for the gop for three or four decades. That breaking down seems like gatekeeping. It’s not.

Originally tweeted by Josh Marshall (@joshtpm) on October 26, 2020.

What will they do if they lose?

Trump Supporters Say They Want a Revolution. They Don't. | The New Republic

One of the more interesting (and somewhat confounding) polling results in this election cycle has been the belief among members of both parties that Donald Trump will win re-election, regardless of who they’re actually planning to vote for. His approval rating has been stuck in the low 40s throughout his term, which is unprecedented, and he’s been behind in the polls from the beginning of the campaign. Yet most Americans still remain convinced that he is going to win. This is from Gallup in early October:

Regardless of whom they personally support, 56% of Americans expect Trump to prevail over Biden in the November election, while 40% think Biden will win. Republicans are more likely to believe Trump will win (90%) than Democrats are to think Biden will (73%). Fifty-six percent of independents predict that Trump will win.

How can this be? Well, of course it all depends on what the definition of “win” is.

The explanation for the Democrats and many Independents is obvious. With all of Trump’s talk about mail-in voter fraud and lawsuits and promises of intimidation at the polls, they believe it’s possible that he will pull out all the stops to create or fake a victory regardless of the legitimate electoral outcome. With his statements to the press that he wants the ninth Supreme Court seat filled in order to ensure a victory, it’s not being all that paranoid to assume it could happen.

Meanwhile, the Republicans are living in an alternate universe in which Trump holds a massive lead in all the polls and is heading for a landslide. They believe this because he tells them that every day.

It’s unlikely we will have full results on election night next week, since some states won’t even begin counting mail-in votes until that day, while others allow ballots to arrive some time after Election Day. There’s certainly the possibility of lawsuits if contests are close. Nonetheless, we will probably know the winner within a few days — Trump’s scenario that it could take “months” is hot air — and it’s worth pondering how the two sides will react.

According to this Reuters-Ipsos poll, more than four in 10 voters on either side will not accept the results of the election. It doesn’t go into details, except to say that 22% of Biden supporters and 16% of Trump supporters say they would engage in street protests or violence if the other side prevailed. But let’s look at the reasons that might happen.

Obviously, if Trump prevails there will be an uproar among Democrats despite the fact that a large number of them believe he’s going to win anyway. But in the unlikely event that he wins outright without any legal shenanigans, partisan court victories, discarding of valid votes or intimidation at the polls, I suspect they will be even more shell-shocked than in 2016, but will accept the outcome with depressed equanimity. If they take to the streets under that circumstance, it might be to stage a protest against pollsters for their overwhelming incompetence. Joe Biden has had a steady and substantial lead in all the polls for months now.

On the other hand, if despite a clear defeat at the ballot box, Trump nonetheless finds a way to “win” through lawsuits decided by right-wing judges who throw out legal votes or takeovers by GOP state legislatures, there will be a massive outcry. People understand that Republicans might try this, but that doesn’t mean they’ll stand for it. In that scenario, our nation would face the worst constitutional crisis since the Civil War. God help us if that comes to pass.

But what about Republicans? They’re already living in a miasma of disinformation, conspiracy theories and lies. Alex Wagner of Showtime’s “The Circus” interviewed a bunch of fanatical Trump-supporting militia members and reported tat for whatever reason they believe Trump will win in a 50-state landslide:

Reporting from Trump rallies on cable news inevitably shows the same attitude even among the more mainstream voters. Trump’s supporters simply do not believe that he can legitimately lose. And why should they? Their Dear Leader — the only source of information they trust — has said so explicitly, over and over again. In fact, that claim has already been institutionalized:

Multiple social media analyses, including one conducted by a group of nonprofit researchers on behalf of NBC News, have detailed how a collection of the president’s relatives and members of his inner circle, along with far-right media manipulators and an online army of disciples, has created or spread false or misleading content that supports his “rigged” narrative, while his campaign is urging supporters to join an “army” and “defend their vote.”

Every single day, Trump is out on the campaign trail threatening to defy the election results. His newest rationale (one of many) is that “they spied on his campaign” and he didn’t get a “friendly transition” in 2016, so he sees no reason to give the Democrats one in 2020:

What this adds up to is this: if the polls are right and Biden wins the election by a healthy margin, Trump voters almost certainly won’t accept the results. Put yourself in their shoes and it isn’t that hard to see why. Four years ago, a lot of Hillary Clinton voters felt as if they’d had the wind knocked out of them by that shocking and unexpected result. That’s what these Trump voters are going to feel, except that the dissonance will be a thousand times worse. They are expecting a Trump landslide, and have been told by him that the only way he can possibly lose is through fraud on a massive scale.

The difference between then and now, of course, is that Clinton and Barack Obama and every Democratic official immediately accepted the results and their supporters largely agreed voters that Trump had won, at least under the antediluvian constitutional machinery of the Electoral College. There is every reason to think that Trump will do quite the opposite, and I’m afraid there’s no reason to believe we can depend upon Republican officials to step up and do the right thing.

And there’s that undeniable pall that hangs over the whole process, with the possibility that well-armed Trump supporters who have been told they simply cannot lose the election will try to take matters into their own hands. After all, some militia-style goons have already plotted to kidnap and “try” Democratic officials for “treason.” We can’t predict how far they’ll be willing to go if their world is turned upside down by an unexpected electoral defeat.

Shortly after the election in 2016, I wrote an column about the “sore winner” syndrome, in which angry Trump supporters were assaulting Democrats and screaming at them on the streets, even though their guy had won the election. This reflects a longstanding attitude among this political faction in which it’s never enough to win by normal means — they can’t be happy about it until they force their rivals to admit they were wrong and offer an unconditional surrender.

Imagine what these people might do when they lose.

My Salon column

The Choice

How Biden Should Debate Trump - WSJ

You can see more highlights on the 60 Minutes twitter feed if you don’t want to slog through the entire interviews. The contrast between the two tickets is off the charts. It’s hard to believe it’s even a question.

Imagine how Wall Street would react

As is standard procedure with competent campaigns, the Biden team is already planning to staff a new administration.

NBC reports:

WASHINGTON — Progressives are pushing hard to see Elizabeth Warren leading the Treasury Department in an opening salvo of a coming ideological struggle for control of key government posts if Joe Biden wins the presidency.

Donors, activists and leaders on the left want Warren, a Democratic senator from Massachusetts, as treasury secretary, more than a half-dozen of them said. And people Warren has spoken to are under the impression that she wants the job if she is offered it.

“There’s a huge gap between Sen. Warren and any other likely candidate,” said Larry Cohen, former president of the Communications Workers of America union and a close ally of Sen. Bernie Sanders, I-Vt. “She, first of all, understands finance capital and second of all is prepared to wrangle with it. Some of the other candidates I’ve heard about are not prepared to wrangle with it.”

Imagine how Wall Street would react.

You want to know how it’ll be? I’ll tell ‘ee … the heavens will open up, and blood will come raining down … and there’ll be plagues of frogs and locusts … and the earth’ll crack, and the seas will boil over … and nameless abominations will come forth, crawling from the slimy depths … there’ll be storms, there’ll be sleet, and fire will engulf the whole earth … er, the rest of the night will be fine except for outbreaks of rain”.

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For The Win, 3rd Edition is ready for download. Request a copy of my free countywide GOTV mechanics guide at This is what winning looks like.

Prime them for surrender

Surrender Of General Lee To General Grant 9 April 1865. Oil On Canvas By Louis Guillaume 1867.

A couple of tweets from more knowledgeable people have me thinking it is time again to, as they say, walk and chew gum at the same time. Progressives need to prepare to lock in our wins between now and Nov. 3 as well as lay groundwork for not losing Reconstruction a second time.

With more than a week to the general election, tensions are running high even as incidents at polling places have been minor. There have been at least two fires set in ballot drop boxes at opposite ends of the country. The acting president’s “implosion on 60 Minutes is much worse than you might think,” tweets Plum Line’s Sargent Greg Sargent. Trump is fuming that he could not intimidate Lesley Stahl into living in a “fictional universe of his own creation.”

Trump’s supporters still do. Both he and they will be more than mildly peeved when it comes crashing down. A Sunday tweet by Dave Wasserman hinted it would.

Progressive messaging guru Anat Shenker-Osorio insists that this side of the cultural divide must do some counter-programming to prepare the Trump cult for a loss:

This is not a matter of counting chickens too early. This is strategic. Building a “Biden wins” narrative now will make it harder for Trump to keep his foot soldiers fighting a war that’s already lost. The North won the Civil War and lost Reconstruction, after all. That sad legacy is still with us. Let’s not do that again. Erode the other side’s will to fight.

A couple of tweets from Tory Gavito of Way to Win reinforce the notion that any red mirage IS a mirage:

Younger voters are turning out as never before. The power they seek to affect change is theirs to grasp right now. Now! Nov. 4th will be too late. That is where the growth potential is for building a Democratic landslide.

Don’t buy into the media’s horse-race narrative. If Wasserman is right, then as Shenker-Osorio says, “beat drum hard [that] we are winning” if we want to win the peace too.

“This is our moment,” Stuart Stevens wrote last week. Act like it:

Now is when you turn a victory into a rout. We are all tired, but the other side isn’t just tired. They are frightened and confused. As they should be. Because they are losing the fight for the soul of this country. And they know it.

Victory is near.

But work your tails off anyway. Push it all the way to the finish line.

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For The Win, 3rd Edition is ready for download. Request a copy of my free countywide GOTV mechanics guide at This is what winning looks like.