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Deja Vu Vu

Published by digby on January 8, 2024

Yes, that happened this month in Italy. And yes, they are wearing black shirts.

Italian opposition leaders have called on Giorgia Meloni’s rightwing government to ban neofascist groups after a chilling video emerged of hundreds of men making fascist salutes during an event in Rome.

The crowd was gathered outside the former headquarters of the Italian Social Movement (MSI), a neofascist party founded after the second world war which eventually morphed into Meloni’s Brothers of Italy party.

The annual gathering, on Via Acca Larentia in the east of the city on Sunday, commemorates the 46th anniversary of the killing of three militants from the now defunct party’s youth wing.

In the video, which was widely shared online, the men are standing in rows making the stiff-armed salute and shouting “present” three times. A militant then shouts “For all fallen comrades!” – a typical rallying cry of neofascists.

This sort of thing is ostensibly illegal in Italy. But it’s apparently hard to prove.

Here’s a story about the journalist who posted that video:

Paolo Berizzi of La Repubblica newspaper has been under round-the-clock police protection for three years after receiving death threats from neo-fascist groups that he reported on. This is the latest episode of our series “Global Voices of Freedom”.

When it comes to freedom of the press, Italy is certainly not a front-runner. According to Reporters Without Borders, it ranks 41st in the world. Last year 25 journalists had to be protected by the police 24 hours a day due to credible threats and attacks. New cases of intimidation are reported almost every day, according to the Italian interior ministry.

Berizzi, a journalist from Bergamo in northern Italy, is one of those 25. He specialises in reporting on the activities of neo-fascist groups in Italy, and consequently has been under police protection since 2019. He is a special case because he is the only journalist who requires an escort for political reasons: all the others are threatened by mafia and organised crime groups.

Berizzi has been writing about the return of neo-fascism and neo-Nazis for the past 20 years in investigations, articles and books.

“In Italy there is a problem of fascism, or rather various forms of fascism, because there are different types,” he explains. “In recent years these have emerged because we have underestimated them and made them normal. Thanks to ideal conditions for their return, racist, discriminatory and nostalgic impulses have re-surfaced among elected lawmakers who have sworn an oath to the Italian Constitution, among European parliamentarians and representatives of institutions who want to convince us that fascism is not just negative but also responsible for good things.”

Looking back, Berizzi says he wouldn’t change anything, even if he could. “I would do all the things I did again. For me, journalism is either a civic action or it is not. Either it serves to denounce phenomena that undermine our peaceful coexistence and daily life, or it abdicates its main function.”

He adds: “We are one of the few countries that have so many journalists under police protection, and that’s not normal. On the contrary, it is a sign that journalists struggle to do their jobs. In a free country no journalists should receive police escorts and protection. The fact that there are so many journalists forced to live under armed protection is a sign of defeat for the state, which has to protect those who are threatened.”

This is why I call the American verson of these people Red Hats. I’m sure you can see the parallels.

Daily Hit Of Hopium

Published by digby on January 8, 2024

Back in 2015, I covered the Trump escalator moment with a mix of horror and amusement. But unlike the smug press corps I took Trump seriously anyway. I quoted Bloomberg’s Mark Halperin, (lately #MeToo accused whose career is pretty much defunct) saying it too:

Substance: Made a concerted and admirable effort to laundry-list his presidential plans before the speech was finished, calling for the replacement of Obamacare, cautioning foreign adversaries about messing with the U.S., expressing opposition to the current trade bill, promising to build a southern border wall and sticking Mexico with the bill, terminating Obama’s executive order on immigration, supporting the Second Amendment, ending Common Core, rebuilding infrastructure, resisting cuts in entitlement programs. Still, left open too many questions about the hows and wherefores, given that he has never run for nor held office.

Best moment: Protracted run-up to formal declaration of candidacy was spirited and engaging.

Worst moment: Lost his rhythm a bit whenever cheerful supporters in the crowd tossed out helpful prompts or encouraging chants.

Overall: A madcap production–garrulous, grandiose, and intense—that displayed his abundant strengths and acute weaknesses. For the first time in decades, Trump is a true underdog, but his ability to shape the contours of the nomination fight should not be ignored. On the debate stage, through TV advertising (positive and negative), in earned media, and by drawing crowds, Trump has the potential to be a big 2016 player. He staged an announcement event like no other, and now he will deliver a candidacy the likes of which the country has never seen.

I wrote at the time:

What is it they say about a stopped clock? Well, even Mark Halperin is right twice a day. The Villagers in general may not be able to see it — but for reasons about which we can’t even speculate, Mark Halperin is on to something when it comes to Donald Trump.

I could never stand Halperin and I probably still can’t. But since he was right about that I figure I might as well pay attention to what he’s saying about Trump now. He’s always seemed to have some insight into the weird phenomenon.

JV Last at the Bulwark links to Halperin discussing Trump and Biden in the wake of this last weekend of campaign rhetoric from both candidates:

It is a crude way to measure both perception and reality, but perhaps the most telling way to view the time between now Election Day is this: Can Biden win enough news cycles to overcome Trump’s current lead?

The answer is that he definitely can, as Friday’s events, and the coverage of them, built around the 1/6 anniversary, demonstrate.

I heard from three readers that Mr. Biden’s remarks represented one of the best speeches in substance and performance of his presidency, maybe even of his career. . . .

The subject of his address definitely reflects three positive advantages for the incumbent, as compared to say, his talking about the economy or immigration.

First, this topic of Trump and democracy and norms is clearly where Biden’s passion is, and candidates almost always are better when they are talking about something that animates them.

Second, the Dominant Media (definitely and decisively) and the general election electorate (unambiguously if not necessarily dispositively) are more with Joe Biden on this matter over Donald Trump than most anything else (besides abortion).

Third, because of the first two reasons, talking about 1/6 and democracy gives Biden a chance to win a news cycle even when he is behind in the polls.

And that, for now and maybe a long time, is one of Biden’s biggest challenges. It is VERY hard to win a news cycle when trailing (as Ron DeSantis and, more than most realize, also Nikki Haley, can tell you).

Until and unless the incumbent goes ahead, even the Dominant Media, which will root hard for him to win until the very end, slants its coverage away from him. . . .

Last agrees with Halperin that Biden will be at a disadvantage as long as he’s trailing in the polls. I would just add that he isn’t actually trailing in the polls right now. In some he’s ahead a few points at others he’s behind a few points. All within the margin of error. Furthermore, many of the headline making polls that show him behind are reporting numbers from registered voters not likely voters which show him leading.

We’ll have to see how the polling goes over the next few months but I think this will probably be another close election in those swing states where our ridiculous electoral college is definitive. Hopefully it won’t be super close but it’s possible. There are no landslides in polarized America.

Last goes on:

As for #2 and #3, those are vectors along which Biden can reasonably hope to improve and Trump probably cannot.

For instance: I would posit to you that, over the next month, we will be approaching the high-water mark for Trump’s poll numbers.

Trump is finishing a primary campaign that was mostly a coronation. His rivals barely criticized him and when they did, they made sure to stay away from his actual electoral vulnerabilities. This period will culminate with a series of blowout victories for Trump: He will win Iowa by the largest margin of any Republican, ever. He will win New Hampshire. He will beat Nikki Haley in her home state by more than 20 points.1

He will win every single primary and caucus.

And this juggernaut of winning will make Trump seem like a colossus.

But that view is likely to be misleading, because unlike every other contested primary in the modern era, Trump will arrive at the nomination in a pre-campaign state where he has yet to take a punch.

And the reality is this: Do you think Republican voters are likely to become more comfortable with Trump the more they see of him over the next 10 months? I do not. Historically, Trump’s approval numbers have moved inversely to the magnitude of his public presence.

I believe this is true. He’s the Big Winner right now because he managed to vanquish a bunch of duds, at least one of whom many Republicans were hoping would be good enough to knock Trump out. Some of them actually aren’t looking forward to more Trump chaos but they are resigned to the fact that he’s going to win. You see this all over the polling, focus groups and anecdotal reporting from the field. I’m not saying they’re going to convert and vote for Biden. But with a rather substantial faction of the GOP coalition wishing there was someone else, you cannot expect his following to grow and there may even be some slight erosion. This is his high point.

MAGA Mike Disappoints

Published by digby on January 8, 2024

As you knew he would

Over the weekend, the Senate and House agreed on the top line budget number which is required before they can make any kind of deal to keep the government open. The Crazy caucus isn’t happy:

Who would be “more conservative” than Mike Johnson, I wonder?

Marge already says she won’t vote for this top-line budget (even though she voted for McCarthy’s) and Johnson only has a one vote majority right now. So don’t get your hopes up that we’ll avoid a shutdown. But who knows? Maybe his direct line to God will provide an intervention.

The Strongest Argument

Published by digby on January 8, 2024

Following up on my post below I wanted to highlight Brian Beutler’s newsletter today about Biden’s speech, with which I agree wholeheartedly:

The remarks don’t just live on the page and in the moment they’re spoken. They have the potential to be recirculated endlessly, on television and social media, and now these clips will communicate Biden’s meaning explicitly, without requiring any sort of decoding.

And as they circulate, they may also serve as an antidote to the huge glut of viral video content on social media that’s selectively edited to make Biden seem doddering and confused. 

Making things like January 6—Trump’s totalitarian ambitions, his crimes and corruption, his general untrustworthiness—the central themes of the campaign has these ancillary benefits, because they are visceral. They unite Democrats, and enliven Biden himself. Policy and economics aren’t similarly unifying or morally black and white, and stripped of the emotional valence of insurrection and dictatorship, they evoke a softer register. They make Biden seem quiet and tired. 

I want Democrats to consider the speech in this light because they have a fatalist tendency to throw a single haymaker, find it did not level their opponent for all time, and thus retreat to safe ground. In this period of after-action assessment, influential party figures will cite the worst news coverage and bad advice from inside the Beltway bubble as evidence that principled anti-Trump politics are a bust. That shouldn’t be the only view Biden hears. 

Let the word go forth …

It’s Always January 6th

Published by digby on January 8, 2024

Groundhog Day isn’t for another month but if you were watching cable news over the past few days you certainly had a feeling of deja vu watching all the footage of the January 6th insurrection again and being reminded of the violence and horror of that day. It is still as shocking as it was three years ago. And yet we are about to embark on a replay of the election that brought is to that awful moment and it feels as if nothing has changed in our politics at all.

Three years ago at this time we were still reeling from the global pandemic that was still taking lives by the tens of thousands and stunned by what had transpired after the election. There was talk of invoking the 25th Amendment against Trump to get him out of office before the inauguration and the congress was considering impeaching him for the second time, mostly in order to prevent him from ever running again. Staunch Trump supporters like then House Majority Leader Kevin McCarthy and S. Carolina Sen. Lindsey Graham stood up to denounce Trump and there was a very strong sense that the camels back had finally, finally been broken.

But everyone should have known better because even after the events of that momentous day, 147 House Republicans came back into the chamber that night and voted to overturn the election results. And as for the impeachment, despite Senate Majority Leader Mitch McConnell reportedly telling his aides,  “The Democrats are going to take care of the son of a b—- for us. If this isn’t impeachable, I don’t know what is,” the Senate Republicans couldn’t muster the 10 more votes they needed to get the two thirds needed to convict.

So here we are. Unless something highly unexpected happens we are facing a rematch between Donald Trump and Joe Biden next November. And the current polling shows that it is very close so unless Donald Trump wins it, I think we can probably expect more disruption and violence just as we did three years ago. It’s as if the whole political system has been frozen in that moment and we’re right back where we started.

Last time we had one of the weirdest presidential campaigns ever with the pandemic causing massive disruptions, with social distancing on the rational Democratic side and super spreader events from the Trump campaign. And we saw the most bizarre political conventions ever mounted with Republicans flouting all norms, as usual, from public health advisories to the use of the White House and major government monuments to stage it as if it were a royal jubilee while the Democrats held theirs outdoors in a parking lot.

And we’re not going back to normal this time. Trump’s assault on democracy has never been resolved so we shall have the bizarre spectacle of a presumptive nominee of the Republican Party under 91 criminal indictments and massive legal problems stemming from his post-election behavior in 2020. Half the campaign may take place inside and outside courthouses. And once again, as it was 24 years ago, a conservative Supreme Court may end up being the deciding factor.

This weekend we had a chance to see the outlines of how the campaign will likely unfold and the contrast has never been clearer. On Friday President Biden gave what many observers called one of the best speeches of his career, appearing at Valley Forge, Pennsylvania to mark January 6th and lay out the stakes in the election. He said, “Today we’re here to answer the most important of questions: Is democracy still America’s sacred cause? It’s what the 2024 election is all about.”

He made clear that he was at Valley Forge to evoke George Washington’s decision to only serve two terms and peacefully hand over the reins of power, establishing one of the bedrocks of American democracy, which Donald Trump upended when he couldn’t bear to admit he lost. And he contrasted his statesmanship with Donald Trump of whom he said, “he still doesn’t understand a basic truth, and that is you can’t love your country only when you win.” And he exhorted the voters to cling to reality and ensure that he doesn’t have a chance to do it again:

“When the attack on January 6th happened, there was no doubt about the truth. As time has gone on, politics, fear, money — all have intervened. And now these MAGA voices who know the truth about Trump on January 6th have abandoned the truth and abandoned democracy. They made their choice. Now the rest of us — Democrats, independents, mainstream Republicans — we have to make our choice.”

Donald Trump stumped in Iowa all weekend, counting down to the primary there in less than two weeks. He made many many, many incoherent and daft statements and lied flagrantly about Biden stuttering through his Valley Forge speech. (He also took a shot at the late Senator John McCain’s disability, suffered when he was tortured as a prisoner of war.) In other words he was his usual childish, bullying self which is what his followers love about him.

But he also talked about January 6th and the 2020 election at each stop.

He also claimed that the FBI “led the charge” that day and repeatedly asserted that those who staged the insurrection did so “peacefully and patriotically” virtually demanding that people believe him rather than their own eyes. And, as it happens, many people do. The latest Washington Post poll found that  only 18% of respondents said they were “mostly violent” and 72% of Republicans think “too much is being made of the storming” of the Capitol.

So, the battle lines have been drawn. On the anniversary of January 6th, the two presumptive nominees for president gave speeches. President Biden told the truth, reminding the country of what really happened. He asked that Americans recognize the threat that another Donald Trump presidency presents to all of us. And Donald Trump continued to lie, even more brazenly than he did then, once again insisting that he actually won the 2020 election and exhorting his followers to “finish the job.”

Those words hold true for the rest of us as well. It’s time to end this stand-off once and for all.

Salon

A Study In Contrasts

Published by Tom Sullivan on January 8, 2024

Morning Joe assembles the evidence

“Sir? How do you do it?” Trump fabulizes. His “sir” stories are legion, as Daniel Dale recounted in 2019:

Lots of people do call Trump “sir,” of course. But the word seems to pop into his head more frequently when he is inventing or exaggerating a conversation than when he is faithfully relaying one. A “sir” is a flashing red light that he is speaking from his imagination rather than his memory.

In poker parlance, it’s a tell.

The supercut assembled for “Morning Joe,” contrasts President Biden’s recent speech with another by Donald “91 felony indictments” Trump.

“Sir? How do you do it? How do you wake up in the morning and put on your pants?”

First off, he doesn’t start with pants.

“We’re a failing nation,” says Trump, who actually does know something about failing.

President Biden, meanwhile, visits Mother Emanuel African Methodist Episcopal Church in Charleston, S.C. today. In 2015, a white supremacist murdered nine Black churchmembers there during a Bible study:

According to his campaign, Biden will warn that MAGA Republicans, led by Donald Trump, are running on a dangerous agenda that is the polar opposite of American principles and will reiterate the stakes of the 2024 election when it comes to democracy and personal freedoms.

The address at the historic church, known as “Mother Emanuel,” comes just days after Biden kicked off the campaign year near Valley Forge, Pennsylvania, criticizing Trump for his actions during the Jan. 6, 2021, attack on the Capitol.

“He’s willing to sacrifice our democracy, put himself in power,” Biden said.

The speech in Charleston will continue to drive that argument, an adviser said, drawing a line between the past and the present with Biden’s choice of the historic venue and linking the church’s history to what he sees as a struggle for the soul of the nation.

It helps that Biden actually has one.

Blue Monday — In A Good Way

Published by Tom Sullivan on January 8, 2024

Republicans fear running on empty

Cartoon by Mike Luckovich via Threads.

Republican control of the U.S. House was dramatically unproductive in 2033. The caucus spent more time mugging for cameras, stalling important bills, ousting their own speaker, and investigating Hunter and Joe Biden (with nothing to show for it) than they did legislating. They worry now it may come back to bite them in the fall elections (Washington Post):

“It’s been a tough year for us,” said Rep. Richard Hudson (R-N.C.), who as the chairman of the National Republican Congressional Committee (NRCC) is tasked with keeping the majority. “I think most people in Congress — Republicans and Democrats — ran to make a difference, to make the country better, not to come up here and have these kinds of disagreements. So it is frustrating, and it’s tiring.”

What their idea of making a difference is isn’t apparent.

“What a motormouth!” was how one relation described Rep. Elise Stefanik’s (R-N.Y.) “Meet the Press” appearance on Sunday. Stefanik set out to prove what an effective ventriloquist dummy she could be for Donald Trump as his vice president. She did everything in her audition but kowtow for him on camera.

Many of Stefanik’s colleagues see a congressional perch primarily as a platform for auditioning for a V.P. slot or a Fox News gig or a think tank sinecure. Governing earns little time in their schedules.

Many Republicans hope the new year brings with it a broad desire to govern and, in turn, prove to the public that they deserve another term in control of the House. But the question of how Republicans across the ideological spectrum define success is already primed to plague the conference as it starts the year with just three votes to spare to pass anything through its fragile majority.

One wonders if “many Republicans hope” is as vaporous as Trump’s “many people say.” The problem the G.O.P. House majority faces is its most vocally visible members are more interested in waging a grandstanding culture war for news hits than in governing.

The New York Times this morning examines how its contact with Trumpism has changed character of the evangelical movement:

“I voted for Trump twice, and I’ll vote for him again,” said Cydney Hatfield, a retired corrections officer in Lohrville, a town of 381 people in Calhoun County. “He’s the only savior I can see.” 

For others, the evangelical brand is now so tarnished that some believers who once embraced the label now reject it. Republicans in the House caucus have the same concern about themselves.

The Post again:

“We have to start governing. … Playing politics with every single issue is not helpful,” said Rep. David G. Valadao (R-Calif.), who represents a swing district. “We need to get to the point where we can start passing legislation and getting something to the president’s desk that actually solves problems for the American people.”

A majority of Republicans, more than a dozen of whom spoke to The Washington Post, agreed they need to pass bills that will allow them to draw policy contrasts with Democrats on the campaign trail. Buthard-liners are much more willingto shut down the government or risk the majority in an effort to ensure that their campaign promises — particularly to rein in federal spending and secure the U.S.-Mexico border — become law. Members of the House Freedom Caucus are particularly incensed over [House Speaker Mike] Johnson’s decision to previously support a short-term extension of federal funding levels — set by congressional Democrats in 2022 — to keep the government open, as well as their colleagues’ willingness to vote with Democrats rather than force conservative demands. Hard-liners have already sent warning shots in hopes of influencing Johnson and GOP leaders to use every opportunity to extract policy concessions from a Democratic-led Senate and White House.

The hardliners are ready again to instigate a partial government shutdown on Jan. 19 in a fight over border security. They’d rather have xenophobia as a wedge issue in November.

Though Republicans largely agree on policy objectives, they remain deeply divided on how to achieve united, partisan wins that could help them credibly argue that their party deserves to retainthe House majority and take back control of the Senate and White House. But even ideas on how to keep the majority are split: Hard-right lawmakers insist the MAGA agenda will help elect more like-minded hard-liners who can help enact laws that advance ultraconservative goals, while more pragmatic Republicans believe their chances of keeping the House rely on reelecting swing-district incumbents and other conservatives willing to compromise.

The NRCC is targeting 37 Democratic-held districts that they believe are within their grasp as Biden’s approval rating has reached all-timelows and polling has shown that voters prefer Republicans on key issues like the economy and public safety.

But as much as House Republicans fret over their nonperformance in 2023, they might worry more about the party’s underperformances in 2018, 2020, and 2022. The MAGA agenda is not terrible popular with the country as a whole even though they picked up some seats in 2020 when Trump famously lost his reelection bid. For his third attempt at the White House Trump is burdened with more chains than Marley’s ghost.

As for the top of the ticket — following a 2022 election in which many Senate and gubernatorial candidates endorsed by Donald Trump lost in key races — Republicans find themselves again most likely running with the embattled former president, who is facing dozens of felony charges in several criminal cases. Hudson said he is not going to tell Republicans “what they should do in the presidential” race and notedt hat House Republicans were still able to pick up 15 seats in 2020 when Trump was on the ticket and lost the presidency.

But 2020 was before the Dobbs decision put womens’s rights front and center. News out of the states since than has only made women’s health and autonomy a more fraught issue for Republicans.

The rest of the report is more of the same. Republicans’ worst enemies right now are other Republicans. That’s the kind of Blue Monday I can get behind.

The Bar Can’t Get Any Lower

Published by digby on January 7, 2024

Trump’s verbal incontinence was out of control this weekend in Iowa in so many ways. But his worst moments were making fun of Biden’s childhood stutter and John McCain’s injury sustained from being tortured during his Viet Nam captivity. The Washington Post reported the Biden comment this way:

“Did you see him? He was stuttering through the whole thing,” Trump said to a chuckling crowd on Friday in Sioux Center, Iowa. “He’s saying I’m a threat to democracy.”

“’He’s a threat to d-d-democracy,’” he continued, pretending to stutter. “Couldn’t read the word.”

The remark was not true; Biden said the word “democracy” 29 times in his speech, never stuttering over it. Trump’s comment also marked a particularly crass form of politics that he has exhibited throughout his career that places politeness and human decency at the center of the 2024 presidential election.

Good for them for reporting it honestly. I’ve seen too many cable shows apparently decideing not to show it because it would “come at a cost” to them to remind the American people of what a cretin Trump is.

The McCain thing illustrates the same point about his lack of human decency. Meghan McCain fired back:

I guess a lot of people are still enjoying this puerile commentary. But I have to wonder how many. There must be some Trump voters who are tired of this grotesque shit. Right?

Don’t Feel Sorry For Ron DeSantis

Published by digby on January 7, 2024

He’s still a MAGA POS

Remember when we all thought that guy was a real threat? I always knew that Trump would be the nominee but it never occurred to me that the guy to whom everyone was singing hosannas as the greatest politician since Lincoln was actually one of the worst duds in history.

I think we all assumed that his strategy was to out-Trump Trump in order to win the nomination but it turns out he’s just another MAGA extremist along the lines of a Kari Lake or that weirdo from Pennsylvania Doug Mastriano:

Florida Gov. Ron DeSantis has revealed that he’s “looking” into ways to block President Joe Biden from the 2024 primary ballot in Florida.

“This is just going to be a tit for tat and it’s just not gonna end well,” the GOP presidential candidate warned Friday alongside Rep. Chip Roy, R-TX, according to a video posted by CNN. “You could make a case — I’m actually looking at this in Florida now [if we] could we make a credible case” to block Biden from the ballot “because of the invasion of 8 million.”

Although DeSantis later added he doesn’t think “that’s the right way to do it.”

He lies as much as Trump and that’s saying something.

DeSantis frequently claims that 8 million illegal immigrants have flooded across the southern American border during the Biden administration. Most reputable statistics report a total of up to half that many immigrants have entered the U.S., the vast majority of them legally, since Biden became president.

Now that he’s been shown to be possibly the worst politician in America you’d think he’d back off the BS just a little bit. But clearly, it’s not in him. He probably hasn’t come to terms with that yet so he’s going to double down on being an asshole thinking he still has a future. He is mistaken.

No Don, You’re Not Above The Law

Published by digby on January 7, 2024

Andrew Weissman takes up the issue of the “interlocutory” appeal that all the lawyers are talking about regarding Trump’s alleged immunity from prosecution. It could have major implications for the election and he does a good job explaining it to non-lawyers:

Last month, Judge Tanya Chutkan (correctly) rejected Trump’s motions to dismiss special counsel Jack Smith’s grand jury indictment on grounds including that he was immune from prosecution. In turn, Trump brought what’s known as an “interlocutory” appeal — meaning an immediate appeal before a final judgment in the lower court. With the agreement of both sides, Chutkan stayed “any further proceedings that would move this case towards trial or impose additional burdens of litigation” on Trump until the appeal is decided by the D.C. Circuit (and potentially the Supreme Court).

We understand why both parties want these underlying questions to be reviewed before trial, yet the default rule is that appeals courts must wait until the end of a trial to hear a case. It is the rare exception, not the norm, to accept an interlocutory appeal. But here, the D.C. Circuit has the power to reject Trump’s claims of presidential immunity — and simultaneously find that this appeal cannot be brought until the trial has been completed, and thus that the temporary stay should be removed.

There is strong Supreme Court precedent indicating that appellate courts do not have jurisdiction to hear Trump’s immunity appeal now. In Midland Asphalt Corp. v. United States, Supreme Court Justice Antonin Scalia, writing for a unanimous court, said that a trial court’s decision is not immediately appealable unless the claim “rests upon an explicit statutory or constitutional guarantee that trial will not occur.” In 2010, future Justice Neil Gorsuch, then a judge on the 10th Circuit Court of Appeals, succinctly encapsulated the Midland Asphalt rule: “Only when a statutory or constitutional provision itself contains a guarantee that a trial will not occur — may courts of appeals intervene prior to a final judgment to review the defendant’s claimed ‘right not to be tried.’” 

In Midland Asphalt, the court identified only two constitutional guarantees against trial that had historically been considered explicit enough to warrant interlocutory appeal: the Speech or Debate Clause (unique protections expressly afforded to members of Congress) and the Double Jeopardy Clause of the Fifth Amendment. By contrast, one of the court’s examples of a ruling not subject to interlocutory appeal was the denial of a claim of prosecutorial immunity. Chutkan’s denial of Trump’s claim of presidential immunity should be treated in the same manner. 

As a new amicus brief filed by American Oversight argues, Trump’s assertion of presidential immunity rests on no explicit constitutional or statutory guarantee against trial, and so the D.C. Circuit should end the appeal and lift the stay. (One of the authors, Sawyer, is the executive director of American Oversight.) The D.C. Circuit has repeatedly applied Midland Asphalt in dismissing interlocutory appeals of immunity claims, including in a case where a former Cabinet secretary argued that he was immune on “structural separation of powers grounds,” like those that Trump invokes as the basis of his own alleged immunity. 

A recent case in the 1st Circuit is particularly illuminating. In his D.C. Circuit brief, Trump equated his presidential immunity claim to judicial immunity. But in U.S. v. Joseph, the 1st Circuit held that an assertion of judicial immunity in a criminal case does not meet the Midland Asphalt standard for interlocutory appeal. Thus, under Trump’s own analogy, his immunity claim fails the test for interlocutory appeal. As Smith contends in his response to Trump’s brief, Trump’s presidential immunity claim is akin to judicial or prosecutorial immunity; contrary to Trump’s position, Smith persuasively argues that these two categories of immunity protect prosecutors and judges from civil liability, “but not from federal prosecution.” Notably, under any circumstance, neither have been found to fulfill Midland Asphalt’s criterion for interlocutory appeal. 

He goes on to explain why Trump’s fatuous back-up argument that because he was acquitted in the Senate impeachment trial he cannot be tried for it again should be a non-starter:

The Constitution’s impeachment clause provides that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment….” In other words, a president who is convicted in a Senate impeachment trial may later be prosecuted criminally — meaning that double jeopardy principles do not apply. Trump contends that the clause means that a criminal prosecution is only possible following Senate impeachment, and that one who is acquitted cannot be criminally prosecuted. But that is not what the explicit text says. It does not say conviction is a prerequisite for later prosecution. “Nevertheless” does not mean “only then.”

Trump also claims that “double jeopardy principles” are implicated by the Impeachment Judgment Clause. But Trump was never in jeopardy: the impeachment wasn’t a criminal trial, and the Double Jeopardy Clause only applies to criminal trials. Moreover, the Double Jeopardy Clause prohibits successive prosecutions regardless of whether the prior one resulted in acquittal or conviction. And the clause applies only when the same crime is charged successively, which is not true here. 

He further explains why none of this means that the court can’t address the underlying immunity questions:

[I]n order to preserve the March 4 trial date, and because the circuit court does not know how the Supreme Court may rule on the Midland issue, it should reach the merits of the immunity claim now. It can do so under D.C. law — the court has previously exercised hypothetical jurisdiction, which simply allows the court to rule on both the threshold jurisdiction question and consider the underlying merits of an appeal.

Therefore, the D.C. Circuit should find that Trump’s immunity appeal is premature and the trial must commence first, and also, alternatively, that presidential immunity does not exist. Doing so would prevent further unnecessary delay, in the event the Supreme Court believes that an interlocutory appeal is proper here — as there would already be an appellate ruling on the merits for the court to consider.

All defendants want to delay a trial as long as possible. But as Weissman says, “while Trump is entitled to no less process than any other defendant, he is not entitled to more,” there fore he should not be allowed any protracted delay. No one else would get this privilege and neither should he. He is not above the law just because he decided to run for president.

The immunity appeal will be argued before the DC Circuit on Tuesday. This thing is getting real. Buckle up.