Republicans deserve everything that’s coming to them
Democrats have plenty of experience with snatching defeat from the jaws of victory. The Israeli war on Hamas in Gaza is not helping President Biden. There are panicked missives in my in-box this morning about how him signing the TikTok bill if it passes will further erode his support among younger voters. Plus, as Dan Pfeiffer acknowledges, the Donald Trump campaign is much better run than it was in 2016 and 2020.
That said, Pfeiffer believes Biden has advantages the increasingly addled Trump wishes he had. For starters, incumbent advantage and non-stop offense:
1. The Incumbent Advantage
There’s a reason why incumbents win more often than not. Incumbency is an advantage. Of course, convincing the electorate to fire a president presents a challenge, but the ability to plan, raise money, and build campaign infrastructure while your opponent is campaigning for the nomination is a huge advantage. Because Trump’s primary opponents never landed a blow on him and he was able to avoid the diminishing campaign rituals, including debates, there was a sense that he negated Biden’s incumbent advantage. But that is not the case.
The Biden Campaign viewed the State of the Union as the starting gun. From the moment the President walked off the dais, the campaign has been fully engaged — dropping new ads, opening offices, and pushing its message aggressively in the battleground states.
They spent the last year quietly building an operation, doing plenty of research, and sketching out a plan to defeat Donald Trump.
2. Biden’s Offense
The Trump Campaign exited the GOP primary largely broke despite facing no real opposition. And his campaign has struggled to pivot to the general election. Since Nikki Haley dropped out, Trump has rarely campaigned, and avoids battleground states or even using media to reach voters. The campaign has no ads of consequence on the air and Trump is spending most of his time spinning records at Mar-a-Lago or attending legal proceedings related to his various criminal trials.
The Biden operation has been on non-stop offense. Since the State of the Union, the President remains omnipresent in the battleground states. His messaging is strategically designed to shore up the President’s coalition; and he is currently in the midst of a three-day tour of Pennsylvania to talk about the economy. Since the State of the Union, the President made major announcements on climate change, student loan debt cancellation, gun safety reform and prescription drug costs. All of these issues are critical to the struggling segments of his coalition.
The Biden Campaign continues to draw contrasts with Trump at every opportunity, launching new ads and videos on a near daily basis to define Trump and his agenda like this ad released immediately after the Arizona Supreme Court enacted a near-total ban on abortion in the state:
This week, President Biden is barnstorming Pennsylvania to drive and amplify an economic contrast message with this new ad.
Trump, on the other hand, has been on defense in recent weeks. He is scrambling to unwind his proposals to cut Social Security and repeal the Affordable Care Act. Trump is also utterly flummoxed by how to talk about abortion. One day he says to leave it to the states, and the next day he opposes Arizona’s state law banning abortion. For the next six to eight weeks, he is trapped in a Manhattan courtroom instead of campaigning in the states that will decide the election.
Based on the first month of the general election, Biden has a clear strategy to win and Trump is still figuring it out.
Yes, the country’s mood is a wild card. But if all politics is local (is that still true?), then the sideshow candidates Republicans are fielding in North Carolina may persuade voters to vote and vote D even if they are put off by national politics.
On Nov. 5, North Carolina will determine whether a slate of Republican candidates who believe that the 2020 election was stolen, who dismiss Donald Trump’s 88 felony charges and who are eager to be led by the most prodigiousliar in the history of the presidency can win in a battleground state.
Pope McCorkle, a Democratic consultant and professor at Duke’s Sanford School of Public Policy, argued in an email that the results of this year’s Republican primary elections on March 5 demonstrate that “the North Carolina G.O.P. is now a MAGA party. With the gubernatorial nomination of Mark Robinson, the N.C. G.O.P. is clearly in the running for the most MAGA party in the nation.”
For those who grew up watching the Tonight Show, “How MAGA are they?”
Robinson has pledged that “Christian patriots of this nation will own this nation and rule this nation,” and he’ll will stop only when his political enemies “run past me laying on the ground, choking on my own blood.” He’s racking up a greatest hits list that’s not to be believed.
On May 13, 2020, Michele Morrow, the Republican nominee for North Carolina superintendent of public schools, responded on X to a suggestion that Barack Obama be sent to the Guantánamo Bay detention camp on charges of treason. Morrow’s counterproposal?
I prefer a Pay Per View of him in front of the firing squad. I do not want to waste another dime on supporting his life. We could make some money back from televising his death.
In Morrow’s world, Obama would be unlikely to die alone. Her treason execution list, according to a report on CNN, includes Gov. Roy Cooper of North Carolina, the former New York governor Andrew Cuomo, Representative Ilhan Omar, Hillary Clinton, Senator Chuck Schumer, Anthony Fauci, Bill Gates and President Biden.
I could go on about the N.C. G.O.P.’s entire council of state slate, but you get the idea. A canvasser here over the weekend encountered a woman completely put out with Joe Biden, so she pivoted to asking about those state races. The voter was shocked, shocked (and not in a Claude Rains way) to hear how bizarre the state Republican slate is. North Carolina Democrats have fielded a solidly non-insane set of diverse candidates.
McCorkle tells Edsall, “the N.C. G.O.P. is testing the outer limits of MAGAism.” I agree with Ezra Levin, Republicans deserve everything that’s coming to them.
These assholes deserve everything that's coming to them electorally. https://t.co/OaJemfQD3G
Read that Washington Post headline again. Is there anything you’ve read lately that encapsulates the ultraviolence the MAGA cult is committing against the United States of America (land of the free, and all) than “Red states threaten librarians with prison”?
Who knew “A Clockwork Orange” (1962) was to be so prescient? Anthony Burgess published Clockwork during the Cold War, in the year the U.S. and the Soviets came closest to nuking each other. Laced with Nadsat, the Russian-based teen slang Burgess invented and put into the mouth of his thuggish protagonist, the book itself was designed as a subtle form of conditioning.
Burgess wrote in 1980, “The novel was to be an exercise in linguistic programming, with the exoticisms gradually clarified by context: I would resist to the limit any publisher’s demand that a glossary be provided. A glossary would disrupt the programme and nullify the brainwashing.”
Two senior Republican lawmakers, the chairs of the House Intelligence and Foreign Affairs committees, say their colleagues are echoing Russian state propaganda against Ukraine.
Researchers who study disinformation say Reps. Mike Turner, R-Ohio, and Michael McCaul, R-Texas, are merely acknowledging what has been clear for some time: Russian propaganda aimed at undermining U.S. and European support for Ukraine has steadily seeped into America’s political conversation over the past decade, taking on a life of its own.
In the 1960s, it was the hippie counterculture that coined “Better Red Than Dead” in reaction to the threat of nuclear war. These days, MAGA Republicans show off T-shirts celebrating their negative partisanship: “I’d rather be a Russian than a Democrat.”
Demonizing political rivals, banning books, threatening librarians with prison, spouting Russian propaganda aimed at destroying the United States is what the Party of Trump considers ultranationalist ultrapatriotism.
The Post explains that while Democrats are attempting to pass measures to “prohibit book bans or forbid the harassment of school and public librarians,” their “library-friendly measures are being outpaced by bills in mostly red states that aim to restrict which books libraries can offer and threaten librarians with prison or thousands in fines for handing out ‘obscene’ or ‘harmful’ titles.” Republicans claim their laws are about pornography:
But other lawmakers say [the bills] are ideologically driven censorship dressed up as concern for children. They note that, as book challenges spiked to historic highs over the past two years, the majority of objections targeted books by and about LGBTQ people and people of color.
The bans are a Republican reverse-Ludovico Technique aimed not at forcing children to read but Brezhnev Era censorship designed by right-thinking “patriots” hoping to prevent children’s exposure to ideas they deem wrong-thinking.
Imagine Stephen Miller back in the White House next year. Then get busy working to elect Democrats up and down the ticket.
Brian Beutler argues today in his newsletter (subscribe here) that even though the media has belatedly begun to acknowledge the booming Biden economy, we live in a world where there are too many people with vested interests in denying to allow Biden to have a “Morning In America” validation:
Even as the mainstream press comes around, there are more than enough individuals and institutions with a rooting interest in denying the health of the economy to keep economic perceptions anchored way below where they’d be under a Republican president. Indeed, it would be remarkable if sentiment pokes above water before the year is out.
If you’re wondering why I think that, here’s a rough-and-ready taxonomy of the doomsayers.
THE REPUBLICAN GRASSROOTS
I’m thinking of millions of partisan voters, mostly anonymous, who are so invested in GOP politics or movement conservatism or even just Donald Trump that they interpret Democratic rule as coterminous with apocalyptic decline. They huff right-wing media for hours a day. Their identities are wrapped up in their disdain for liberals, big cities, Hollywood, and the mainstream media. They can’t fathom the country succeeding under the opposing party so they assume it must be spiraling downward along every conceivable dimension. Sadly, these kinds of Republicans comprise the great majority of GOP voters. There are Democrats who have an equal-and-opposite worldview, but their numbers are lopsidedly small. When Donald Trump became president consumer sentiment among Democrats dipped slightly but spiked among Republicans. When Biden beat him, Democratic sentiment improved quite a bit, but Republican sentiment collapsed.
REPUBLICAN CYNICS
These are conservatives and professional propagandists who know the truth, but understand the value of misleading the public in big ways and small—if all they can do is tell a pollster they think the economy is a disaster, when they know that’s not true, that’s what they’ll do. If they have enough clout to spread false gloom to low-information voters, they’ll do that, too. This category includes scores of party elites, but I’m thinking especially of Steve Bannon, Fox News anchors (particularly in primetime), the Trump family, Elon Musk, etc. Between these first two categories, we’re already edging close to half the country.
ONLINE WRECKERS
There’s surely overlap between Republican cynics and online wreckers, but here I’m thinking less of official and unofficial party operatives, and more of a diffuse set of content makers with bad motives. Clout-seeking doomsayers who know that spreading free-floating misery is a recipe for viral traffic; influencers in realms like fitness where showing disdain for all things Biden is an entry point to selling supplements (or investment tips or whatever); leftists who want to crush liberalism, even at the cost of returning Trump to power; armies of trolls who are excited about returning Trump to power; megarich tech and finance bros, but I repeat myself.
If you ever express anything remotely positive about the economy online—particularly about macroeconomic data—you will encounter one or all subspecies of online wreckers. They spread conspiracy theories about official data being cooked. They mock the idea that data, even if gathered ethically, can tell us anything more valuable than anecdotal impressions of the national economy or “lived experiences.” There’s a secret depression. Eggs and Big Macs are more expensive now, even though eggs haven’t been expensive for over a year and you bought that Big Mac on DoorDash. Their meta-method isn’t just to say they haven’t enjoyed the spoils of the recovery, but to make observing the reality of the recovery seem deeply uncool. I don’t suspect that there are many online wreckers in absolute terms, but they dominate economic discourse on social media, where most Americans get at least some information.
LEFTY MATERIALISTS AND LIBERAL QUANTS
I’m lumping these two groups together because their approaches are similar, though their ideologies differ. The former essentially believe—for perfectly justifiable reasons!—that the U.S. economy has never been good or just. For them, a mismatch between sentiment and macro data represents the first time in memory that the numbers have made sense. And because they believe politics is downstream from material conditions, they go looking for material explanations of unusual political phenomena, even if it means reaching much deeper into the data than could possibly be useful. The scholar Tyler Austin Harper wrote, “Many middle-class people want to buy a house and cannot afford to [] buy a house in this economy. An economy where many gainfully employed middle-class people can’t buy a house is not a good economy, no matter what the pie charts say.” It’s true: many middle-class people who want homes can’t afford them. Also true: This has been the case for a long time now, including through periods when economic sentiment was sky high.
Liberal quants have much more faith in the macro data. So much so that they believed the correlation between GDP growth and incumbent political success was something like an iron law. Biden’s poor standing amid a historic boom unsettles them, and so they’ve taken to revising their theories with epicycles. Perhaps a heretofore undiscovered lag effect keeps sentiment mired in the doldrums after a period of inflation? Perhaps people remember 2020 fondly because of all the stimulus money they had (while stuck in their homes for months on end)?
You’d think these validators of discontent would be more responsive to straightforward refutations of their insights: Last time inflation was high it did not generate this much economic despair, let alone for over a year after inflation ended; last time interest rates were at this level people thought the economy was good. It’s easier for young Americans to buy homes now than it was just a few years ago, when economic sentiment was extremely high. The economy is stronger now than it was prior to the pandemic, but sentiment is much, much worse. Etc etc.
Nevertheless, they persisted.
SALESPEOPLE
These people aren’t acting with obvious political or ideological motives. They just want people to spend their money, and think the best way to do this is with a “we feel your pain” appeal to the collective sense that things are expensive and it’s harder than usual to get by.
We are living in a whiny, outrage culture driven by social media, Donald Trump, pissed off liberals, right wing grievance fetishists. And we are still recovering from the pandemic which knocked us for a loop. So I think Beutler has a point. On the other hand, most people get tired of negativity after a while and want some relief. I think that may be in play as well. Unfortunately, that may not come until after the election. If Trump wins he will get credit for it which is just too much to bear.
There’s a lot going on in this world right now. This man is running for president and has a business that’s failing. Why in the world is he thinking about this at 8:00 in the morning?
And, needless to say I’m sure, it was Al Pacino who made the gaffe about “Best Picture” (not Picture of the Year) not Kimmel. And I don’t think anyone said “Don’t read his truth, Jimmy” because it’s stupid.
His mind is not working right. Not that it ever did but it’s getting a lot worse, right before our eyes. This is just bizarre.
It’s the Republicans, stupid. Or rather, the stupid Republicans.
This is so idiotic. Everyone knows that Mayorkas will not be convicted in the Senate. This kabuki today, with some MAGA Republican Senators caterwauling that there must be a full trial is supposed to jam up the Democrats running in tight Senate races but I find it hard to believe this mess means much to the average voter. Do most people even know it’s happening?
I expect we’ll see more of this in the future. Just as they set the precedent for presidential non-accountability with the criminal Richard Nixon’s pardon, they did the same with Clinton’s absurd impeachment. The Republicans have been destroying norms for many decades now. It just ramped up to warp speed under Trump.
This Mayorkas impeachment is particularly pathetic because it’s all happening because they can’t muster a reason to impeach the president even though they want to do that more than anything as a gift to their Dear Leader so they’re doing this as a sop to their base and a means to flog immigration for their electoral benefit. But it’s clear that they’re also fighting among themselves, just as they are in the House, so this is actually more evidence that they are completely useless at governance and their party is completely dysfunctional.
Half of Republicans think the Arizona ban is wrong
It’s the other half that is the problem:
Think about that. A quarter of Arizona’s Republicans strongly approve of that grotesque law. And another 21% sort of approve of it. It’s sick. They’re sick.
What Alan Bloom’s “The Closing of the American Mind” left me with most, beside his “these kids today” tone, was how, in our congenital hubris, many Americans believe their thoughts are their own. With no real schooling in the evolution of ideas or in critical thinking, Americans may ignore what they’ve absorbed from their cultural melieu as having no real bearing except perhaps on their sartorial and musical preferences. Fundamentalists, of course, receive an upbringing not only in what to think but in what not to, and to distrust ideas not handed down by the patriarchs, the apostles and megachurch prosperity peddlers.
A habit of not interrogating one’s own thoughts make a mind fertile ground for those deliberately sowing weeds. The Washington Post has obtained a Russian document describing its government’s efforts at just that:
In a classified addendum to Russia’s official — and public — “Foreign Policy Concept of the Russian Federation,” the ministry calls for an “offensive information campaign” and other measures spanning “the military-political, economic and trade and informational psychological spheres” against a “coalition of unfriendly countries” led by the United States.
“We need to continue adjusting our approach to relations with unfriendly states,” states the 2023 document, which was provided to The Washington Post by a European intelligence service. “It’s important to create a mechanism for finding the vulnerable points of their external and internal policies with the aim of developing practical steps to weaken Russia’s opponents.”
The document for the first time provides official confirmation and codification of what many in the Moscow elite say has become a hybrid war against the West. Russia is seeking to subvert Western support for Ukraine and disrupt the domestic politics of the United States and European countries, through propaganda campaigns supporting isolationist and extremist policies, according to Kremlin documents previously reported on by The Post. It is also seeking to refashion geopolitics, drawing closer to China, Iran and North Korea in an attempt to shift the current balance of power.
Using much tougher and blunter language than the public foreign policy document, the secret addendum, dated April 11, 2023, claims that the United States is leading a coalition of “unfriendly countries” aimed at weakening Russia because Moscow is “a threat to Western global hegemony.” The document says the outcome of Russia’s war in Ukraine will “to a great degree determine the outlines of the future world order,” a clear indication that Moscow sees the result of its invasion as inextricably bound with its ability — and that of other authoritarian nations — to impose its will globally.
It’s hard to imagine more fertile ground for sowing such weeds than the minds of a nihilist, anti-democratic movement led by a malignant narcissist with dictatorial ambitions, unless it is social media that rewards anger, divisiveness, and conspiratorial content with engagement. The Mueller Report documented in detail how the Russian Internet Research Agency skillfully played Americans for suckers in 2016. They watched as seeds of disinformation sprouted and choked reality until Donald Trump adviser Kellyanne Conway could proudly speak her alternative truths on Meet The Press.
Ecumenical extremism
Yes, they mean it:
The academic, Vladimir Zharikhin, called for Russia to “continue to facilitate the coming to power of isolationist right-wing forces in America,” “enable the destabilization of Latin American countries and the rise to power of extremist forces on the far left and far right there,” as well as facilitate “the restoration of European countries’ sovereignty by supporting parties dissatisfied with economic pressure from the U.S.”
Read: Undermine NATO.
For Mikhail Khodorkovsky — the longtime Putin critic who was once Russia’s richest man until a clash with the Kremlin landed him 10 years in prison — it is not surprising that Russia is seeking to do everything it can to undermine the United States. “For Putin, it is absolutely natural that he should try to create the maximum number of problems for the U.S.,” he said. “The task is to take the U.S. out of the game, and then destroy NATO. This doesn’t mean dissolving it, but to create the feeling among people that NATO isn’t defending them.”
The long congressional standoff on providing more weapons to Ukraine was only making it easier for Russia to challenge Washington’s global power, he said.
Moscow has plenty of help on Capitol Hill. Some MAGA types may be bought. Others willingly volunteer. Other volunteers may not even know it:
“I think Russian propaganda has made its way into the United States, unfortunately, and it’s infected a good chunk of my party’s base,” Representative Michael McCaul, chairman of the House Foreign Affairs Committee, told Puck’s Julia Ioffe last week. Representative Mike Turner, chairman of the House Intelligence Committee, went further, telling CNN’s Jake Tapper a few days later, “We see directly coming from Russia attempts to mask communications that are anti-Ukraine and pro-Russia messages, some of which we even hear being uttered on the House floor.”
It’s not paranoia if they really are out to get you.
MAGA House Republicans on Tuesday peformed “The Impeachment of Homeland Security Secretary Alejandro Mayorkas, Act 2.”
You wonder why Republicans get nothing done? So does Chip Roy.
“One thing: I want my Republican colleagues to give me one thing—one—that I can go campaign on and say we did. One!” Texas Rep. Chip Roy thundered on the floor of the House in November.
Roy: One thing. I want my Republican colleagues to give me one thing. One. That I can go campaign on and say we did. Anybody sitting in the complex, if you want to come down to the floor and come explain to me, one meaningful, significant thing the Republican majority has done pic.twitter.com/RGc4FTAelt
Roy got no takers. They were too busy performing for the Fox News audience and Donald Trump. The play’s the thing, they thought, wherein we’ll win approval from the MAGA king.
“What’s especially striking about Alejandro Mayorkas’ impeachment is how little effort Republicans are investing in keeping up appearances,” Maddowblog observes:
And then, nothing happened. The idea that this was an urgent matter of great national importance was quickly contradicted by the fact that Republicans didn’t do anything with the articles of impeachment for weeks.
Ah, but wait. They did. For Donald Trump’s trial in Manhattan to begin. They delivered the impeachment articles to the Senate on Tuesday. And who did they select for that solemn duty?
“The group of GOP impeachment managers included some of the party’s most right-wing extremists, including Reps. Marjorie Taylor Greene of Georgia, Clay Higgins of Louisiana, and Andy Biggs of Arizona,” writes Steve Benen:
These aren’t the kind of managers party officials would choose to make a credible case to the Senate; these are the kind of managers party officials would choose as part of a partisan, election-year stunt.
And that’s because this entire process is clearly a partisan, election-year stunt.
Evidence? Pishposh. Unserious impeachment managers? Step outside and we’ll show you serious.
The party that won’t raise the minumum wage or support Ukraine against the Russians won’t give their voters bread but will give them a circus in hopes that somehow it will either a) fuel their base’s simmering anger, and/or b) distract attention from Donald Trump’s legal peril.
“We’ve taken impeachment, and we’ve made it a social media issue as opposed to a constitutional concept,” former Colorado Rep. Ken Buck declared before resigning in disgust last month.
Benen adds:
GOP officials are barely even trying to prove him wrong. Republicans might as well be wearing t-shirts that read, “Yep, we’re engaged in a partisan, election-year stunt.”
NBC News’ report added, “It’s expected that Senate Democrats, who control the chamber, will band together and vote to dismiss or table the issue, then move on to other business, including the chamber’s need to renew a critical spy tool before it expires Friday. None of the Senate’s 51 Democrats have said they support the Mayorkas impeachment, and even a handful of GOP senators have said the impeachment is meritless.”
Senate Majority Leader Chuck Schumer will swear in senators as jurors in five hours. Watch this space.
The Lincoln Project set “The Procession of the Impeachment Managers” to appropriate music.
In oral argument today, Justice Thomas is minimizing the severity of the 1/6 insurrection at the Capitol. Perhaps that's because his wife was part of the conspiracy. What a disgrace that he's sitting on this case. #SCOTUS
The Supreme Court spent about an hour and a half on Tuesday morning arguing over whether to make it much harder for the Justice Department to prosecute hundreds of people who joined the January 6, 2021, attack on the US Capitol.
It appears, after Tuesday’s arguments, that a majority of the justices will side with the insurrectionists — though it is far from clear how those justices will justify such an outcome.
The case, known as Fischer v. United States, involved a federal law which provides that anyone who “obstructs, influences, or impedes any official proceeding, or attempts to do so” commits a very serious federal felony and can be imprisoned for up to 20 years — although, as Solicitor General Elizabeth Prelogar pointed out during Tuesday’s argument, actual sentences against January 6 defendants convicted under this statute have been much shorter, normally ranging from a little less than one year to slightly over two years.
As a federal appeals court held in its decision in this case, the obstruction statute is pretty darn clear that it applies to an effort to obstruct any congressional proceeding intended to certify the result of a presidential election — like the proceeding that the January 6 rioters attacked. And very few of the justices seemed to agree with Jeffrey Green, the lawyer representing a January 6 defendant, who proposed one way to read the statute more narrowly.
Nevertheless, many of the justices expressed concerns that the law sweeps too broadly and that it must be narrowed to prevent people who engage in relatively benign activity from being prosecuted.
Justice Samuel Alito, for example, expressed uncharacteristic sympathy for hecklers who interrupt a Supreme Court hearing — suggesting that prosecuting them under a statute that can carry a 20-year sentence goes too far. Justice Neil Gorsuch expressed similar concerns about prosecuting someone who peacefully conducts a sit-in to delay a court hearing, or someone who pulls a fire alarm to disrupt an official proceeding.
Indeed, Tuesday’s argument had a bit of a split personality. During Green’s time at the podium, most of the justices took turns criticizing his attempts to read the ban on obstructing an official proceeding narrowly. Even Alito, who is normally the Court’s most reliable vote for any outcome preferred by the Republican Party, got in on the game — telling Green that he “may be biting off more than [he] can chew” by arguing that the statute must be read to benefit his client.
By the time Green sat down, it appeared that he could lose in a 9–0 decision.
But any optimism that the Justice Department might have had early on in the argument must have been shattered almost as soon as Prelogar began her argument. Most of the justices peppered her with skeptical questions, although the justices who seemed to want to limit the obstruction statute struggled to agree on a single legal theory that would allow them to do so.
So the bottom line is that this case is probably going to end well for many January 6 defendants, but it is far from clear how the Court will justify such an outcome.
It appears that Trump may be spared having to pardon some of those J6 “hostages” after all. (The ones currently in jail for long terms were convicted of other crimes as well.)
Millhiser goes on to lay out the obstruction law in detail and then writes:
[W]hile it is hard to read the obstruction law in a way that doesn’t apply to rioters who invaded a government building for the purpose of disrupting the election certification process — forcing the entire Congress to flee for safety — many of the justices were concerned with other, hypothetical cases where this law might be used to target less troubling activity.
As Alito put it at one point, “What happened on January 6 was very, very serious,” but we need to figure out the “outer reaches” of the statute.
And so Prelogar faced a blizzard of hypothetical applications of the obstruction statutes, along with vague allegations that the government was applying the law selectively to pro-Trump rioters. Justice Clarence Thomas, for example, asked her if this law has ever been applied to a violent protest in the past (Prelogar conceded that it has not, but attributed that to the fact that the January 6 attack is unprecedented).
Meanwhile, several justices expressed concerns about people being charged with a felony for what Alito called “minor impediments,” such as if a heckler forced a proceeding to be delayed for a few minutes or if street protesters made it more difficult for members of Congress to drive to the Capitol. The concern appeared to be that people who engage in minimally disruptive political protests could be charged with a very serious felony.
There are several potential ways out of this trap. Prelogar pointed out that the statute prohibits behavior that “obstructs” a proceeding, and a minimal disruption might not rise to that level — though that theory did little to quiet the many skeptical questions she received.
One of the appellate judges who heard this case, Trump-appointed Judge Justin Walker, also suggested another way to limit the law. Walker homed in on the fact that the statute only applies to someone who “corruptly” obstructs a proceeding, and he wrote in an opinion that this word should be read to only apply to defendants who acted “with an intent to procure an unlawful benefit either for himself or for some other person.”
That interpretation, which Sotomayor and Kavanaugh both alluded to during Tuesday’s argument, would allow the January 6 insurrectionists to be prosecuted — because the whole point of that insurrection was to procure an unlawful benefit for Donald Trump: a second presidential term. But it would prevent the obstruction statute from being applied to minor heckling and the like.
Among the Court’s Republican appointees, Justice Amy Coney Barrett seemed the least sympathetic to the insurrectionists. Though she asked Prelogar whether she could “be comfortable with the breadth” of the obstruction statute, she also suggested that overaggressive prosecutions could be culled because the defendants in those cases could raise First Amendment challenges.
Still, even if the Court’s three Democrats hang together, and even if Barrett joins them, it is unclear whether they can find a fifth vote to hold the January 6 insurrectionists accountable under this particular statute.
Millhiser points out that the conservative judges appear to be very “selective” when it comes to protection for protesters. Yeah.
Let’s hope they can at least cobble together a majority to narrowly agree that the law should apply to Trump. But I won’t be surprised if they let him off the hook. That would mean that two charges will be dropped but he’ll still be on the hook for two others. But it’s obvious that he should be tried under this law.
