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Month: September 2022

Lying before the Supreme Court

N.C. Republicans base “independent state legislature” case on a fake

Charles Pinckney of South Carolina. Gilbert Stuart Portrait circa 1786, via NPS.

Considering whoppers told by conservative nominees in recent Senate confirmations, is it any wonder North Carolina Republicans believe conservative justices will find “a 204-year-old lie” persuasive?

Representatives from the Brennan Center demolish N.C. Speaker Tim Moore’s (R) argument for the “independent state legislature theory” (Politico):

This fall, the court will hear Moore v. Harper, an audacious bid by Republican legislators in North Carolina to free themselves from their own state constitution’s restrictions on partisan gerrymandering and voter suppression. The suit also serves as a vehicle for would-be election subverters promoting the so-called “independent state legislature theory” — the notion that state legislators have virtually absolute authority over federal elections — which was used as part of an attempt to overturn the 2020 presidential election.

The North Carolina legislators’ case relies in part on a piece of paper from 1818. But there’s a problem: The document they quote in their brief is a well-known fake.

Peer back into U.S. history (some most regrettable) and names from South Carolina appear regularly: John C. Calhoun, Charles Pinckney, Preston Brooks, Strom Thurmond. Lindsey Graham is destined to join them.

Pinckney’s name is attached to the fake in question, a document he submitted in 1818 that, scholars surmise, was Pinckney’s attempt to sell history on the notion that he was the true father of the Constitution. James Madison responded at the time with a “detailed refutation of Pinckney’s document along with the rest of his copious notes from the Convention. It was the genteel, 19th-century equivalent of calling BS.”

For over a century, the document, says “a modern-day researcher,” is “probably the most intractable constitutional con in history.”

Not that that’s a problem for Tim Moore.

Here’s why. The Elections Clause of the U.S. Constitution dictates that the “times, places, and manner” of congressional elections “shall be prescribed in each State by the Legislature thereof” (unless Congress chooses to “make or alter” the rules). The framers understood this authority to be subject to the ordinary checks and balances found in state constitutions — for example, the governor’s veto and state judicial review. We know this, in part, because some framers themselves voted to approve state constitutions circumscribing the legislature’s power over congressional elections. We also know that the framers — Madison chief among them — deeply distrusted state legislatures.

The North Carolina legislators, however, would have the Supreme Court believe that, in assigning federal election administration to state legislatures, the framers intended to sweep aside the traditional checks and balances — preventing state courts, the governors and other authorities from policing partisan gerrymandering and voter suppression by the legislature.

And they point to Pinckney’s fraudulent document as proof. The plan Pinckney released in 1818 assigned the administration of congressional elections to “each state.” Proponents of the independent state legislature theory argue that, if the framers deliberately changed the chosen election administrator from the “state” to “the legislature thereof,” they must have meant to eliminate other state actors from the process.

North Carolina’s argument in Moore v. Harper is that, well, we’ve had it all wrong since the Constitution was ratified in 1788. Our wrongness has been discovered now just in time to ensure Republican-controlled legislatures can install Donald Trump or another Republican candidate as president should she or he lose the electoral college vote in December 2024.

If it wasn’t for bad faith, they wouldn’t have no faith at all.

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Request a copy of For The Win, 4th Edition, my free, countywide get-out-the-vote planning guide for county committees at ForTheWin.us.

Authoritarians with guns

Police departments respond to insurers before citizens

This police killing from Colorado is still troubling me this morning:

After getting stuck on a dirt road in Clear Creek County in June, Christian Glass called 911 for help.

Instead, the 22-year-old was killed while locked inside his own car after a long, tense, confusing and chaotic confrontation played out between him and Clear Creek deputies and a handful of other agencies. Video footage was released by his family’s lawyers.

“From beginning to end, the officers escalated and proactively initiated force,” Glass’ family lawyers, Siddhartha Rathod and Qusair Mohamedbhai, said, in a release. “And yet, these officers, including the one who killed Christian, are still in uniform and have paid no price for their conduct. Our country cannot continue to tolerate this level of extreme violence by law enforcement. The act of simply calling 911 for help cannot be a death sentence.”

The amateur geologist was having some sort of panic attack locked inside his car after running off the road. Glass was not suspected of any crime, a Colorado State Patrol sergeant advised its offices on scene, saying. “If there is no crime and he’s not suicidal or homicidal or a great danger, then there’s no reason to contact him.”

But by then officers from five agencies were on scene. A local deputy shouted that Glass needed to step out of the car. The young man refused, apparently paranoid and confused. The 911 call for help ended about 80 minutes later with Glass dead.

Public outrage at police excessive force tragedies involving choke holds, gunfire, and high-speed chases has not brought reform to how police are trained or deploy force, nor to the judicial policy of qualified immunity. When cops kill civilians, few face prosecution or dismissal. Their departments face lawsuits. When departments lose, taxpayers foot the bill and insurers backstop the police.

Departments that chafe at public calls for reform are being forced to change. Money speaks louder than unnecessary deaths and injuries. Insurers are beginning to balk (Washington Post):

The movement is driven by the increasingly large jury awards and settlements that cities and their insurers are paying in police use-of-force cases, especially since the 2020 deaths of Breonna Taylor and George Floyd. Those cases led to settlements of $12 million and $27 million, respectively. Insurance companies are passing the costs — and potential future costs — on to their law enforcement clients.

Larger law enforcement agencies — like the Los Angeles Sheriff’s Department or the New York Police Department — handle it in different ways, often by creating a special fund to finance settlements or by paying those costs from the county’s or city’s general fund. This insulates them from external demands by insurers.

Departments with a long history of large civil rights settlements have seen their insurance rates shoot up by 200 to 400 percent over the past three years, according to insurance industry and police experts.

Even departments with few problems are experiencing rate increases of 30 to 100 percent. Now, insurers also are telling departments that they must change the way they police.

A high-speed chase over an expired tag in St. Ann, Mo. left an uninvolved driver, 55-year-old Brent Cox, permanently disabled. The department whose motto is, “St. Ann will chase you until the wheels fall off,” had a history of high-speed chases involving crashes.

The St. Louis Area Insurance Trust risk pool — which provided liability coverage to the city of St. Ann and the police department — threatened to cancel coverage if the department didn’t impose restrictions on its use of police chases. City officials shopped around for alternative coverage but soon learned that costs would nearly double if they did not agree to their insurer’s demands.

St. Ann did, finally.

John Chasnoff, a local activist, had tried for years to urge St. Ann to change its policies.

“It’s an indictment on St. Ann police and their priorities that the voice of their insurers spoke louder than human lives,” Chasnoff said.

The Post’s coverage is lengthy, part of its ongoing Unaccountable investigative series.

A wrongful death settlement in Springfield, Ore. handed the city department’s insurer oversight over police reforms:

In addition to de-escalation training and a new process for reviewing use-of-force incidents, the city agreed to create an awards program that recognizes officers who peacefully resolve potentially perilous encounters with civilians. The department also agreed to adopt a policy stating that officers “value and preserve human life” and “strive to use the minimum force necessary to accomplish their lawful objectives.”

Lauren Regan, an attorney with the Civil Liberties Defense Center who represented Black Unity protesters over police response,  described a longstanding “cowboy culture in the department.” Authoritarian arrogance and “To Protect and to Serve” go together like oil and water.

We’ve written for years about the “warrior copculture and the “officer survival” movement. Each new tragic excessive force death or injury — they are by now legion — reinforces the need for retooling how police do their jobs. But it is clear that that starts by hiring fewer authoritarian personalities to start and then training them to serve as guardians instead of warriors. It is pathetic that cities are more responsive to the cost of insuring departments than to human tragedy.

But here we are.

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Request a copy of For The Win, 4th Edition, my free, countywide get-out-the-vote planning guide for county committees at ForTheWin.us.

The latest looney Senate wannabe

New Hampshire went there too:

Tim Miller did the deep dive on this nutcase. He’s a real doozy:

He is not, like [Governor] Sununu, a popular mainstream R with a track record of success; he’s an absolute loon who lost a Senate primary in 2020 and is a favorite in Bannon’s War Room where he is referred to only as “The General,” as if he were some kind of exiled Kazak communist who Bannon is demanding be released from prison.

Which happens to be exactly the profile Republican primary voters are looking for this year. As such, “The General” leads in a recent poll with 32 percent. Trailing with 16 percent is milquetoast State Senate President Chuck Morse, who endorsed Jeb Bush in the 2016 primary followed by a smattering of candidates in single digits—most notably a gentleman named Kevin Smith, a New England town manager whose campaign landing page features a video of him at the border (Mexico, not Canada).

Sununu has not yet endorsed in the race, though it is widely suspected that he supports Morse. He has recently mocked Bolduc as “not a serious candidate”—perhaps not realizing that unseriousness has been the coin of the realm in 2022 GOP primaries. Bolduc rejects Sununu’s dismissiveness and has stated on multiple occasions he believes the state’s Republican governor is a “Chinese Communist Party sympathizer.”

More meaningfully Trump has also not endorsed in the race despite the natural synergies with Bolduc. Part of the reason for this is that his man on the ground in New Hampshire, former campaign manager and self-described serial stabber Cory Lewandowski, has been trying to steer his old boss away from another sure loser towards Morse or Smith.

Why would the Lowell Impaler be concerned about Bolduc?

Well even though his top consultant, a former colleague of mine Rick Wiley, is arguing that The General has a “common sense message” with “broad appeal,” there are some good reasons to believe that Lewandowski’s reticence is well-founded.

Let’s take a penny tour through Bolduc’s track record and see his “common sense” in action.

If you are familiar at all with Don Bolduc it’s probably from the brutal on-air correction he received from Fox News’ Jennifer Griffin after he let slip a little loose talk about sending on-the-ground troops into Ukraine.

https://twitter.com/Acyn/status/1498127075030364160?s=20&t=puV-UwXn8tLIMFdo1VdKOw

While Bolduc’s ground troop bloodlust may be a bit of an outlier on the nationalist right, the rest of his views put him in the sweet spot for the median MAGA voter, most importantly when it comes to election fraud hysteria.

According to audio of a recent campaign event, Bolduc has ominously claimed our current electoral process allows for a “corrupt system of ballot stuffing” that “circumvents the machine.”

Corrupt system of ballot stuffing and machines. Machines in particular. So what they’re organizing and they’re being pretty effective about it . . . they’re also asking people to vote somebody in for dog catcher. Anybody. You know if it’s down there and it’s listed as a position, moderator. Write anyone in for anything . . . I’m just using dog catcher as an example. Forces a hand count immediately when there’s a write-in. So it circumvents the machine . . .

Big if true.

This is not Bolduc’s only foray into election conspiracies. He signed an insane letter in May of 2021 that questioned the results of the 2020 election and implored a “fight for our survival like no other time since our founding in 1776.”

The General has also been a vocal anti-vaxxer suspicious of Bill Gates’ plan to implant people with tracking microchips. He was specifically concerned that Gates and the government were planning a vaccine registry, which he heroically vowed to conscientiously object to. According to The General, the only chip going inside him would be a woke globalist corporate product famous for its all natural ingredients—the “Dorito.” Bolduc’s microchip worries earned him a rebuke from a group of New Hampshire doctors who warned that his rhetoric could result in fewer people taking a life-saving vaccine. The General refused to bow to those elitist cucks with their “science” and epidemiology and doctorates of medicine. Because while most Granite Staters emphasize the “Live Free” portion of the state’s motto, Bolduc demands that respect be paid to the “Or Die” bit.

Unlike some of his anti-vax co-conspirators, Bolduc did not believe that COVID was fake news. On Twitter he shared the view that it had been purposefully created by China to “kill” Americans and destabilize the West. This is the tension of the Alex Jones Proposition: If COVID is a Chinese bioweapon, then why shouldn’t Americans get vaccinated to protect themselves from it?

Best not to think about that too hard.

The General has other concerns: That his nemesis Bill Gates and George Soros also funded the “militant wing” of Black Lives Matter, which he deems a domestic terrorist organization. By contrast Bolduc is of the opinion that Confederate statues should be preserved in America because they are “a symbol of hope, a symbol of inspiration, a symbol of moving forward.” This is a strange position for a New Hampshire Yankee, but his gray shirt fans seem to concur!

Being such a learned individual, you won’t be surprised that Bolduc also has strong views about what our children are being taught in schools. At an event in Londonderry he argued that even private schools should be subject to government bans on the discussion of “sexuality.”

The dropping and the scores, the lowering of the standards, the teaching of ideas and concepts, it should never, ever enter a school, private, public or otherwise, about sexuality and about transgender and about social emotional learning.

Like I said: My dude isn’t really into all that “live free” stuff.

And yet, despite his enthusiasms concerning microchip registries, dastardly voting machines, federal curriculum guidance, and Confederate statues none of these issues are the animating passion of Bolduc’s campaign.

Instead, he says his main goal in office would be to repeal the 17th Amendment, a real kitchen table issue if there ever was one. Presumably ending the direct election of Senators is especially important to Bolduc either (a) as part of his multifaceted commitment to tearing down American democracy; or (b) as a CYA so the voters wouldn’t have the opportunity to run his ass out on a rail should he somehow manage to bumble his way to victory in November.

Or maybe that’s a false choice. We’ll have to wait for the general election debates or The General’s next appearance on an insurrectionist podcast to find out.

He won with 37% of the GOP vote. How that will translate in the general election is anyone’s guess but most people think this has tremendously boosted Maggie Hassan’s chances to keep the seat.

The MAGAs also nominated a 25 year old woman whose only claim to fame is being Kayleigh McEneny’s assistant and another kooky Trumper for New Hampshire’s 2 House seats.

Both seats are now leaning Democrat which wasn’t a given a couple of months ago.

The oranges of the investigation rot on the vine

Durham folds up shop

A pathetic waste of time and money, just to make Orange Julius Caesar happy:

Fox News spent years smearing the Justice Department investigation into Russian interference in the 2016 election as a criminal conspiracy by Obama administration officials and the “deep state” against Donald Trump. The network’s campaign ultimately spawned a sprawling probe by special counsel John Durham that followed up on Fox’s call to “investigate the investigators.” But now that investigation is reportedly coming to an end, with little to show for itself other than additional Fox content.

Durham “appears to be winding down his three-year inquiry,” The New York Times reported Wednesday, noting that the grand jury he “has recently used to hear evidence has expired, and while he could convene another, there are currently no plans to do so.” 

The special counsel ultimately developed cases against three individuals, but as the Times noted, “he has not charged any conspiracy or put any high-level officials on trial.” Former FBI lawyer Kevin Clinesmith pleaded guilty for altering a document used to justify the surveillance of a Trump campaign aide and was sentenced to probation. Durham charged former Clinton campaign lawyer Michael Sussmann with a single count of lying to an FBI agent, but he was found not guilty by a unanimous jury in May. The last remaining person on Durham’s public docket is Igor Danchenko, a Russian national who contributed to the Steele dossier and goes on trial next month on charges of making false statements to the FBI.

That’s a poor result for a probe that Fox hosts such as Sean Hannity had declared was necessary to target an anti-Trump conspiracy that featured an array of high-ranking public officials, including former President Barack Obama and former Secretary of State Hillary Clinton. At one point, Hannity argued that if the investigation did not result in high-level convictions, “the great American republic will disintegrate before your eyes.”

But at the same time, the probe wasn’t a total loss — it provided Hannity and his ilk with a steady stream of content. I noted after the jury found Sussmann not guilty that Fox had aired more than 2,000 weekday segments that discussed Durham’s investigation or the origins of the Russia probe since his May 2019 appointment, with more than 500 coming after he was named special counsel in October 2020. 

The network’s coverage has dwindled since then, but the damage has been done. Durham’s probe fit neatly into Hannity’s counternarrative, in which Trump and his associates were victims of a witch hunt and the real crimes were all committed by overzealous anti-Trump investigators. That conspiracy theory has foundered in court, and the Justice Department’s inspector general concluded in December 2019 that the Russia probe was properly predicated. 

Its legacy, however, will be in solidifying the GOP’s turn against the FBI and the Justice Department and setting the stage for the current vein of demagoguery against the various federal probes of Trump and his allies. Hannity sought to put Trump above the law, and, at least for Republicans, he succeeded.

Trump told his rally goers in Pennsylvania just last week that he was waiting for the Durham Report, because it will blow the lid off the “Russia hoax.” It looks like he’ll be disappointed. I’m sure he’ll lie about it anyway and say it proved that Obama and Hillary and Hunter Biden made the whole thing up but that’s just the world in which we live now.

Deep thoughts from a lizard-man

Stephen Miller, monarchist populist?

The Bulwark’s JV Last quips:

I didn’t realize that blood-and-soil conservatism was descended from blood-and-scepter conservatism. But it scans.

Tbh, I’m kind of surprised Miller didn’t say it all the way out loud: No more royals marrying black people.

We heard it loud and clear anyway.

Justice Kagan throws down

She begs to differ from John Roberts

She tells it like it is. If the Court is suffering from a crisis of illegitimacy they have no one to blame but themselves:

If Chief Justice John G. Roberts Jr. has chosen to close his eyes to the Supreme Court’s role in its own legitimacy crisis and defend his radical colleagues, Justice Elena Kagan has chosen to be a clear-eyed truth-teller.

On Monday, she let loose a burst of refreshing clarity during a talk at Temple Emanu-El in New York. “Judges create legitimacy problems for themselves … when they instead stray into places where it looks like they’re an extension of the political process or when they’re imposing their own personal preferences,” she said. She added that the public has a right to expect that “changes in personnel don’t send the entire legal system up for grabs.”

That’s as clear an indictment of the six right-wing justices as you are going to hear. Indeed, Kagan made a few irrefutable points while eviscerating Roberts’s feigned cluelessness.

First, she makes clear that the problem is undeniable. The public’s confidence in the court has cratered, and wide swaths of the public believe it is too partisan. Roberts would have us believe the public is simply reacting to a decision it does not like; Kagan scoffs at the suggestion. Something is very wrong, she acknowledges.

Second, she recognizes that there is no mass delusion underlying the public’s frustration with the court. Conservatives used to take responsibility for their actions, but that was before the MAGA era of victimhood in which all ills including their own debacles are blamed on “elites,” “liberal media” or “fake news.” Kagan understands there is a reason for the public’s repudiation of the Supreme Court, and that’s the court’s own conduct.

Third, she identifies the primary catalyst for the court’s present crisis: the gutting of precedent by the newest justices. The dissent in Dobbs made plain the absence of any objective rationale for dispensing with nearly 50 years of precedent on abortion rights. As she and Justices Stephen G. Breyer and Sonia Sotomayor wrote, “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed.” They continued, “Stare decisis, this Court has often said, ‘contributes to the actual and perceived integrity of the judicial process’ by ensuring that decisions are ‘founded in the law rather than in the proclivities of individuals.’ … Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law.”

The dissenters called the majority opinion for what it is: partisan hackery. “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them,” they wrote. “The majority thereby substitutes a rule by judges for the rule of law.” The dissenters correctly predicted the firestorm the decision would unleash, and warned that the majority in Planned Parenthood v. Casey, which refused to overrule Roe v. Wade, had it right. “The American public, they thought, should never conclude that its constitutional protections hung by a thread — that a new majority, adhering to a new ‘doctrinal school,’ could ‘by dint of numbers’ alone expunge their rights.” But, the dissent concluded, “It is hard — no, it is impossible — to conclude that anything else has happened here.”

Kagan went one step further on Monday, pointing out that there is a price to be paid for the attitude that Roe can go by the wayside simply because the right-wing justices have the votes. They may have the votes, but they cannot control the widespread revulsion when the court rips through precedent it dislikes. For if “we’ve got the votes” is the controlling sentiment, then it follows that the justices should be treated like politicians with binding ethics rules, term limits and greater transparency (on decisions to recuse themselves from cases, for example).

Dobbs is not the only reason for the court’s plunge in credibility. The right-wing justices’ rewriting of voting rights law (Brnovich v. DNC), their assault on the administrative state (West Virginia v. EPA), their inconsistent application of state power (New York State Rifle & Pistol Association, Inc. v. Bruen) and their thumb-on-the-scale treatment of the Establishment Clause (Kennedy v. Bremerton School DistrictCarson v. Makin) have all taken their toll. So has the majority’s manipulation of the shadow docket and partisan screeds by right-wing justices in public settings.

It’s one thing to overturn a long-standing opinion that is antediluvian and hugely unpopular with a large majority of the people. It’s quite another to overturn a constitutional right conferred decades before that is only opposed by a fanatical minority. Do these people think they get their legitimacy from Mitch McConnell and Leonard Leo?

What if he went to the Capitol that day?

Just imagine it …

Mark Danner has a tour de force Trump analysis in the NY Review of Books this week called “The Slow-Motion Coup.” I highly recommend you read the whole thing. It’s long and it’s worth it. Here’s just the opening:

Our political End Times glitter with surreal scenes—the green-tinted shock and awe unleashed over Baghdad, the “Brooks Brothers warriors” rioting at the Miami election bureau, the jetliner piercing the Manhattan skyscraper—and beneath the unearthly beauty of the Capitol dome that frigid January day, I gazed in wonder at the latest of them: the heaving bodies in their winter clothes, the dark-uniformed, club-wielding police falling back before the phalanx of fists and bicycle racks and flagpoles, and, floating over the straining limbs, the swirls and eddies of bear spray and tear gas in nauseous yellow and green. Was it all a grotesque mirage? Is this what revolution really looks like? And yet we know now that from this phantasmagoric tableau a vital piece was missing: he was meant to be there.

Donald J. Trump’s essential advantage is to be always underestimated: treated as a narcissistic fop, a deranged and ignorant bull in the china shop of American governance. True, he knows little and refuses to learn more because he is certain he knows all. True, he flaunts his narcissism and mythomania with petulant and unflagging pride. But for all that, he is a connoisseur of grievance and resentment and outrage, and a master at shaping from these lucrative political emotions a creative and motivating message. Could anyone accuse him of failing to comprehend the politics of spectacle? Could anyone doubt that he would have known how to shape this fantastic scene of “the people” seizing back their government into a full-fledged camera-ready extravaganza?

Scarcely an hour before and a couple miles away—just as I was shuffling off the Ellipse with my half-frozen, flag-wielding fellows to march up Constitution Avenue toward the Capitol, where, the ranting president had vowed to us, “I’ll be there with you!”—Trump was climbing into the Beast, the presidential limousine. When the driver took the wheel to return his precious cargo to the White House, Trump grew instantly irate. “I’m the fucking president!” he screamed to his Secret Service protectors. “Take me up to the Capitol now!”

They had refused, of course, and went on refusing, even after the enraged president seized one of the agents at the throat. Or so White House aide Cassidy Hutchinson recounted to the January 6 committee, unleashing a cascade of furious denials. Did the president really respond to this thwarting of his will with violence? Perhaps the better question to have explored was: What would the president have done had those Secret Service agents obeyed? How would that day have unfolded? For it is clear that he had some plan, clear that what was intended to seem an impromptu visit to the Capitol had been well thought out, at least for Trump. “Cass, are you excited for the sixth?” Rudy Giuliani had asked Hutchinson as they left the White House four days before. “It’s going to be a great day.” Why? she asked. “We’re going to the Capitol. It’s going to be great. The president is going to be there. He’s going to look powerful. He’s going to be with the members. He’s going to be with the senators.”

He’s going to look powerful. In his mind’s eye, did Trump see himself descending from the Beast amid the welter of bodies outside the Capitol, to the wild cheers of the beefy men pummeling the police—and turning from their violent work to howl and slam their gloved hands together or raise their fists—and to the shouts of noncombatants arrayed in their Trumpian finery milling about the Capitol lawn? There in his chic black overcoat he would have waved, smiled, thrust his fist in the air as the tens of thousands of his faithful, far and near, raised their voices in a bloodcurdling roar. And finally, after shaking scores of hands, taking a few selfies, and perhaps offering an inspiring word or two through a megaphone, he would have led the crowd up the steps, as the cheers rose deafeningly and the little screens of the cell phones held aloft conveyed him making his triumphant way up to the domed temple in thousands of miniature images.

For had the president chosen to stride up those steps, who would have dared stop him? His followers would have fallen in behind him and the Capitol police would have fallen away before him and he would have breached the doors himself, his gold-orange hair shining beneath the mythic white dome in the crisp cold sunlight of that historic January day.

Is that how Donald John Trump, forty-fifth president of the United States, had imagined it? And if so, what did he then intend? Would he have led his chanting, flag-waving followers through the ceremonial doors, past the looming statues, down the marble hallways, and into the Senate chamber, there to face squarely his white-haired, stalwart vice-president, poised in frozen shock on the dais? With his Senate supporters gathered around their victorious leader, shaking his hand, pounding him on the back, would President Trump have smiled up at Mike Pence, held out his famously small hand, and demanded the certificates certifying the electoral votes of the “stolen” election? And would Pence, a man who had shown himself until this very day to be one of the most obsequious public officials in American history, have dared refuse? And then perhaps, in a dramatic gesture for his rowdy minions and the senators and the congressmen and the television cameras and the whole world watching, Donald Trump with his own two hands would have torn those tokens of legitimacy asunder.

We may well never know, of course, what exactly Trump had planned for his momentous appearance at the Capitol that day. We do know that this dramatic visitation was to be the last in a series of attempts—involving false declarations on election night, forged electoral certificates, insinuating telephone calls with state legislators and secretaries of state, consultations with marginally unbalanced conservative lawyers, and endless, merciless pressure on the hapless vice-president (“You can either go down in history as a patriot or you can go down in history as a pussy”)—to overthrow the results of the election. Eight weeks after election day, after his vice-president’s betrayal, the final betrayal of all the Deep State betrayals of his four years in office (“He’s thrown the president under the bus!” a red, white, and blue–clad woman, eyes glued to her phone as we marched up Constitution Avenue, shouted out to us), Trump found himself with no choice but to seize power personally, at the head of thousands of rabid followers, some of them armed. (“They’re not here to hurt me,” he had shouted before his speech, when he learned that those bearing weapons were being stopped at the gates. “Let my people in!”) It would be beautiful, unforgettable. It would be a true and decisive victory over the Deep State. It would be his March on Rome.

Or perhaps his Beer Hall Putsch. Who can say? Would Pence, however surprisingly firm he had held to the Constitution those last few days, have dared oppose the president and his merry band in the Senate chamber? And if Pence had not managed to perform his “ministerial” role, could the election have been certified for Joseph R. Biden that appointed day of January 6? And if the election couldn’t be certified, would the matter have been thrown into the House of Representatives, where Democrats held a majority of seats but Republicans, crucially, controlled a majority of the state delegations, which the Founders in their wisdom had decided would be the deciding measure? If all the Republican-controlled delegations voted for Trump, the House would have chosen him as the country’s next president. Biden could have appealed to the Supreme Court, but could the Court, with six Republican votes, have been depended upon to render dispassionate justice, any more than it had managed to do twenty years before?

It is shockingly easy to imagine how the events of January 6, with just a tiny detail altered—a Secret Service agent, say, who was not quite so determined in opposing a screaming commander in chief—could have worked out quite differently and produced a reelected President Trump and furious Democrats marching in the streets. Would the triumphant president have called out the military to quell those crowds, as he had tried to do the previous spring during the Black Lives Matter protests? Would the senior officers—as “nonpolitical” as they pride themselves on being—have dared to disobey?

All counterfactuals, of course, are submerged beneath the relentless forward march of what actually happened. Still, however much we want to relegate the events of January 6 to the realm of the near-missed catastrophe, our politics remain imprisoned in a series of events unfolding from that day. The coup did not end on January 6 or even in the early hours of January 7, when Congress finally certified the election of the new president. Today this unfinished chain of cause and effect—call it a slow-motion coup—continues to unfold before the country. The coup drives news coverage. The coup elects candidates. And the coup has already gone far toward leaching from our democracy the one element indispensable for a peaceful politics: the legitimacy of our means of conferring power. By launching and leading his slow-motion coup, Donald Trump has led the country into an unfamiliar and darker world. We don’t know how, or if, we will emerge.

That’s just the beginning. He goes on to discuss the GOP’s complicity, the lunatic followers, Trump’s sickening childhood with a sociopath father and the possibility of Trump taking another run at it. It’s disturbing, but it’s just great. I urge you to read it.

This particular passage gets to one of my big unanswered questions about January 6th.Was Trump really planning on going to the Capitol? Was there a plan? Was Rudy’s weird comment that he was planning to stand there “with the Senators” something he really thought would happen? I don’t know if we’ll ever know. But this shows what might have happened if it did. And what has come since shows that he just moved on to Plan D. Whatever it takes. He will never voluntarily quit.

QOTD

I appreciate the honesty and clarity if nothing else

Orban himself describes his system as “illiberal democrqacy” which Wikipedia defines as:

An illiberal democracy describes a governing system in which, although elections take place, citizens are cut off from knowledge about the activities of those who exercise real power because of the lack of civil liberties; thus it does not constitute an open society.

The rulers of an illiberal democracy may ignore or bypass constitutional limits on their power. They also tend to ignore the will of the minority which is what makes the democracy illiberal. Elections in an illiberal democracy are often manipulated or rigged, being used to legitimize and consolidate the incumbent rather than to choose the country’s leaders and policies.

Some theorists say that illiberal democracy is fundamentally undemocratic and therefore prefer terms such as electoral authoritarianismcompetitive authoritarianism, or soft authoritarianism.

That’s what they’re talking about.The main difference is that in America it’s actually a project of the minority which is enabled by flukes in our democratic system.

Barr’s shame

His DOJ was a corrupt mess

In June of 2020, the country was still in the throes of the COVID pandemic, and dealing with the prospect of a wild presidential campaign being waged in the middle of it. We were all glued to the TV watching doctors explain what happens when you go on a ventilator and looking at graphs that showed skyrocketing cases and death rates. There were a lot of important stories in that strange time that sort of passed under the radar. One of them was Attorney General Bill Barr’s firing of Geoffrey Berman, the U.S. attorney for the Southern District of New York. Now Berman has written a book about his time working under the Trump administration, “Holding the Line,” and it’s fascinating. The corruption of the Department of Justice under Barr was worse than we thought.

As most readers likely know, the Southern District of New York amounts to a sort of super-office within the Justice Department because it handles most of the big white-collar crimes emerging from Wall Street and the financial industry, and many national security and organized crime cases.. For better or worse, it’s known to operate with a great deal of independence from DOJ leadership in Washington. On a Friday night in late June of 2020, Barr released a statement saying that Berman was stepping down as U.S. attorney for the SDNY and would be replaced by Jay Clayton, then-chairman of the Securities and Exchange Commission, who had no prosecutorial experience. Since that appointment must be confirmed by the Senate, the U.S. attorney for New Jersey, Craig Carpenito, would step in on a temporary basis. 

All this came as a surprise to nearly everyone involved — but no one as much as Berman himself, who had absolutely not resigned. He issued this statement of clarification:

Barr had offered the SEC job to Berman, who had refused. So Barr tried an end-run of sorts, and Berman was having none of it. Berman’s comment that “our investigations will move forward without delay or interruption” certainly suggested that Barr was firing him because Berman wasn’t doing the AG’s bidding on certain cases.

In fact, only the president can fire a U.S. attorney, and Barr told Berman the next day that Donald Trump had done so, issuing a letter accusing Berman of “choosing spectacle over public service.” Weirdly enough, Trump denied this, forcing the White House to say later that he’d “signed off” on Berman’s dismissal, suggesting that he might have nodded at some point while not quite listening on his way to the golf course. Berman didn’t try to fight this more or less legal firing, but insisted that Barr agree to appoint Berman’s assistant U.S. attorney, Audrey Strauss, rather than some Trump’s toady.

There was a lot of speculation at the time about why Barr wanted Berman out. His office had pursued a number of cases involving Trump associates and Trump himself, including the prosecution of former Trump attorney Michael Cohen and of two associates of Rudy Giuliani, Lev Parnas and Igor Fruman, which led to investigations of Giuliani himself. Berman had also investigated Trump’s endlessly corrupt inaugural committee along with a number of Trump-connected people involved with the Turkish state bank. Trump had been purging the DOJ of people he felt to be disloyal for some time, starting with his first attorney general, Jeff Sessions. He’d also fired Sally Yates, the acting attorney general who preceded Sessions, FBI Director James Comey and then Acting Director Andrew McCabe, as well as FBI general counsel Dana Boente and a bunch of inspectors general. It wasn’t mysterious why Barr believed Berman had to go. Trump had been complaining that the New York office was “filled with Democrats out to get him” and Barr (at that point) was eager to serve as his hatchet man.

Berman’s book pretty much confirms all that speculation and more. He refreshingly names names and declines to canonize those who only had their “come to Jesus” moment after Trump lost the election, especially Barr but other Jan. 6 committee witnesses as well, such as former Acting Attorney General Jeffrey Rosen.

Perhaps the most damning anecdote in the book concerns the case of Greg Craig, Barack Obama’s former White House counsel, who was accused of violating the law that requires lobbyists for foreign governments to register as such. Barr and his henchmen were determined to get a Democrat after the Justice Department had prosecuted Michael Cohen and former Rep. Chris Collins, a Trump supporter. Berman reports that Barr pushed him to indict Craig, saying, “it’s time for you guys to even things out. We want you to indict Greg Craig before the midterm election.” Berman refused, so Barr gave the case to a different office willing to bend to his will. Craig was indicted — and then acquitted on all charges in less than five hours — but Barr was able to demonstrate to his boss that he was getting the job done. They’d put a Democrat through the wringer.

Berman cites one incident after another in which Barr tried to shut down Trump-related investigations, replaced prosecutors with yes-men or set up bizarre systems to protect Trump’s cronies.

A year or so before that, Trump had tweeted, somewhat mysteriously, “Iran is being given VERY BAD advice by @JohnKerry and people who helped him lead the U.S. into the very bad Iran Nuclear Deal. Big violation of Logan Act?” I doubt Trump knew anything about the Logan Act, an archaic law that is almost never enforced, but apparently the Justice Department snapped to and immediately ordered up a prosecution in New York. Berman says he also headed this one off.

Throughout the book Berman cites one incident after another in which Barr either tried to shut down investigations into cases involving Trump or replaced DOJ deputies and prosecutors with more compliant yes-men. He set up bizarre systems designed to protect Trump’s cronies, taking the investigation of Rudy Giuliani’s antics in Ukraine away from the New York office and putting it in the hands of a loyalist U.S. attorney in Pittsburgh, who refused to share any information with SDNY.

Perhaps the most corrupt action was Barr’s interference in the Halkbank case, an investigation of top officials of the Turkish state bank who were violating the Iran sanctions. When the DOJ moved toward a criminal indictment of the bank, Barr stepped in and instead produced a weird “global settlement” deal that involved secret non-prosecution agreements with top Halkbank officials. Berman refused to keep those secret, saying that would be defrauding the court, but Barr insisted on the rest of it. The U.S. government evidently got nothing in return for this favor, but it’s entirely possible thatTrump did. John Bolton made clear in his own book that all of this was about Trump’s business dealings in Turkey.

This was just the story of one prosecutor in one office, albeit the most famous and important one in the federal system. And we already know what Barr did with the Mueller report and the prosecutions against Michael Flynn and Roger Stone, let alone how Trump himself abused the pardon power.

Of course Trump and his supporters in the right-wing media are now running around screeching about how Joe Biden has “weaponized” the Justice Department with its probes into Trump’s attempted coup and insurrection, and now the case of the stolen government documents at Mar-a-Lago. That’s just right-wing projection: They did it, so now they have to accuse the other side of doing it too. They may even believe that Biden and Merrick Garland are as cynical and corrupt as they are, since that’s how they believe the world works.

But the truth is that Donald Trump and his accomplices were corrupt then, and they’re corrupt now. That includes Bill Barr and all his henchmen who went along with it, at least until that particular game stopped being fun. That may be how it works in TrumpWorld but the rest of us don’t believe that. We would like to see some accountability for all this — and maybe even a little old-fashioned justice. 

Lying into the camera

It’s one thing they’re good at

Republicans — well, not as a group — gave Democrats a gift Tuesday when Sen. Lindsey Graham’s announcment “underscored the determination of Republicans to enact a regime of forced birth throughout the United States,” writes Jennifer Rubin:

Senate Minority Leader Mitch McConnell (R-Ky.) tried to minimize the damage. “I think most of the members of my conference prefer that this be dealt with at the state level,” he weakly told reporters. Now, the Republican leader faces a dilemma: He cannot deny Republicans’ intentions without infuriating the right-wing base, and he cannot encourage Graham without driving Democrats to vote.

Reactionaries believe abortion is murder, but the GOP (except for Graham) thinks states should decide if that’s a crime. That should cause heads to explode. But it won’t because cognitive dissonance is by now muscle memory for the Trumpish base.

Majority Leader Charles E. Schumer (D-N.Y.) went to the Senate floor on Tuesday to knock MAGA Republicanism farther back on its heels. “Proposals like the one today send a clear message from MAGA Republicans to women across the country: your body, our choice.” 

Rubin adds:

Graham has provided a real service to the electorate. No voter need be confused about the two parties’ position on women’s autonomy, health care and constitutional rights. When Republicans tout a national abortion ban — or denounce the FBI or downplay Jan. 6 or oppose a slew of popular bills — they are telling us precisely what they stand for. Voters should listen.

But voters have an annoying habit of hearing what they want to hear. MAGA Republicans will not stand silently as opponents and reality reveal them for who they are.

Dan Pfeiffer this morning ponders the coming GOP counter-offensive:

The Republicans have an intractable political problem borne of reality — the public is focused on abortion AND they absolutely abhor the Republican position. The good news for Republicans (but not democracy) is that they have a propaganda and disinformation machine with the power to bend reality to their political whims. Step one in their plan is to erase the radical positions they adopted earlier this year. As Axios recently reported:

In battlegrounds in Pennsylvania, Michigan, Colorado, Arizona and North Carolina, GOP candidates are scrubbing abortion language from campaign websites and adjusting rhetoric on the trail.

Step two: Stare into the camera and repeatedly lie about their position. 

Lying into cameras is right in the GOP’s wheelhouse. They likely teach it during media training at the Leadership Institute if not to Young Republicans even earlier.

“Lying through their teeth in soft-focused direct-to-camera ads is the same tactic the Republicans used in 2018. Remember Josh Hawley and others blatantly lying about their support for removing the Affordable Care Act’s protections for people with preexisting conditions?” Pfeiffer asks.

Graham has made that a more of a problem for his colleagues. But it’s not an insurmountable one for a party led by a man who believes there’s a sucker born every minute.

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