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No Biden and Pence are not being held to a lower standard.

Published by digby on June 13, 2023

These cases are not the same

If anyone things that Trump is being treated less fairly than Pence and Biden they need to realize that Trump is not being prosecuted for any of the highly sensitive documents he gave back to the government, first on his own and then in response to the subpeona. He is only being charged for the documents they found later when they issued a warrant.

Biden and Pence have given back all the documents, no subpoena and no warrant necessary. If they were indicted for retaining those documents they would be being held to a higher standard than Trump.

Read this piece by Eric Levitz which shows that the DOJ has actually given Trump an easier time than anyone else who did what he did. He runs down all the reasons the Clinton, Biden and Pence cases and makes the same point I made above. He then cites a particular case of an average citizen:

[I]t is helpful to contrast the DOJ’s treatment of Trump with its handling of Asia Janay Lavarello, a former civilian employee of the Defense Department.

In 2020, Lavarello was on assignment at the U.S. Embassy in Manila, where she had been researching a classified thesis. Her work drew on other scholarly research that was also classified. She had been conducting the research in a secure information facility at the embassy until COVID-19 shut it down. Shortly thereafter, she brought three classified theses back to her hotel room. That night, she held a dinner party at which a guest discovered the classified documents and confronted her about them. She returned the documents to a safe at the embassy two days later but failed to return them to the secure information facility specifically. For this, the DOJ charged Lavarello with unauthorized retention of classified documents and sought to put her in prison. Ultimately, they reached a plea bargain that put her behind bars for three months.

Compare this to the conduct for which the DOJ did not charge Trump: Upon leaving office, the ex-president brought more than 300 highly classified documents to his private residences, including top-secret materials detailing atomic secrets and national security vulnerabilities; he retained these documents for about a year despite government requests for him to return them. His own public statements indicate that his retention of those documents was willful, and he repeatedly expressed a sense of entitlement to their possession, saying that, as president, he had the power to declassify those materials “even by thinking about it.”

Nevertheless, as late as January 2022, the Justice Department was still giving Trump the opportunity to avoid charges by returning the documents he had taken. The indictment released last week makes this point clear.

In January of last year, Trump returned 197 classified documents to the federal government. Despite his willfully retaining those documents for months, the federal indictment released last week does not charge Trump in connection with any of them — which is to say, the DOJ gave Trump a pass on 197 potential counts of willful retention of national defense information. Instead, it charged him with only 31 counts, each corresponding with a highly classified document that Trump knowingly withheld from the government in January 2022 and the FBI later obtained.

To review: Lavarello removed three classified dissertations from a secure information facility amid a pandemic that prevented her from accessing that facility. She kept the documents in her hotel room and did not deliberately show them to anyone. She then voluntarily returned them to a locked safe at the embassy within a matter of days. The DOJ chose to charge her and seek a prison sentence.

Trump, meanwhile, removed 197 highly classified defense documents from the White House. There is reason to believe he might have shared some of those documents with private citizens since he has been caught on tape sharing other highly classified documents in his possession with friends. He refused initial requests to return the documents, and he retained them for about a year. The DOJ chose not to prosecute him for doing so since he did eventually return them.

There is no substantive reason why Lavarello’s removal of three classified dissertations from an embassy for a few days deserves to be punished more harshly than Trump’s retention of 197 highly classified documents for months. It is clear, therefore, that the Justice Department prosecuted the ex-president much less aggressively than it would an ordinary citizen under the same circumstances. To the extent that political considerations influenced the DOJ’s handling of the case, they led the department to extend Trump extraordinary opportunities to extricate himself from legal peril so as to avoid the politically inflammatory spectacle of his prosecution.

Meanwhile in the Fever Swamps, Biden is going to jail

Published by digby on June 13, 2023

Yes Donald Trump was arrested and arraigned today. But if you were to watch right wing media you’d think it was Joe Biden who was facing a criminal trial. Don’t kid yourself. That story is happening right alongside Trump’s impending trial.

Philip Bump takes you through it just so you know what they’re braying about if you happen to hear it:

The news release went out on May 3 from the Republican majority on the House Oversight Committee.

“Information provided by a whistleblower raises concerns that then-Vice President Biden allegedly engaged in a bribery scheme with a foreign national,” it alleged, quoting committee Chairman James Comer (R-Ky.).

A letter from Comer and Sen. Charles E. Grassley (R-Iowa) to the FBI, seeking the release of documentation of a June 2020 interview, wasn’t similarly hedged. The document, it claimed, “describes an alleged criminal scheme involving then-Vice President Biden and a foreign national relating to the exchange of money for policy decisions.”

Over the next month, Republicans pressed the FBI to release the form publicly. Comer threatened to hold FBI Director Christopher A. Wray in contempt. Grassley and he appeared on Fox News and other right-wing media over and over to use this pressure campaign to re-elevate the allegation they’d featured at the outset. Eventually, the FBI made the document available for members of Congress to view, redacting information about the confidential source who had been interviewed.

But despite incremental new revelations about the form and about the push for the form to be released, nothing about the situation has changed from that first news release. Republicans are hyping a secondhand allegation from a single source — an allegation that was in the hands of Attorney General William P. Barr’s Justice Department in mid-2020 without leading to criminal charges or, it seems, any specific investigation.

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It is not hard to figure out why this is unfolding the way it is unfolding. There’s an enormous appetite on the right at the moment for evidence that the FBI and Justice Department are deploying a double standard or that Biden deserves to face criminal charges just as much as former president Donald Trump. That provides the space that Comer and Grassley are filling, running far ahead of their extremely limited evidence.

According to reports from legislators who’ve seen the interview document — including Comer and Grassley, who say they’ve seen an unredacted version of it — the allegation is that an executive with the Ukrainian energy company Burisma offered bribes of $5 million to both Joe Biden and his son Hunter Biden.

Burisma, you’ll recall, was at the center of Trump’s first impeachment. Trump wanted Ukraine to announce an investigation into Joe Biden (who he correctly expected to be his 2020 opponent), claiming that Biden tried to block a corruption investigation into the company to benefit his son. This was debunked at that point, with Biden’s calls for the ouster of Ukrainian prosecutor Viktor Shokin being rooted in Shokin’s not aggressively prosecuting corruption. There’s no evidence that Shokin was investigating Burisma, and there was an international consensus that he needed to go.

Both because Trump was facing impeachment and because his team believed that Biden was vulnerable on the issue, Trump’s attorney Rudy Giuliani continued to seek derogatory information about Biden in Ukraine. This was worrisome to federal law enforcement, which warned the Trump White House that Giuliani might be a vector for Russian misinformation. (One of his sources was later added to a sanctions list during the Trump administration for being linked to Russian intelligence.) At the beginning of 2020, Barr established a process for vetting information about Ukraine, clearly in part because of concern that Giuliani’s information would trigger wild goose chases. The U.S. attorney responsible for vetting the information, Scott Brady, met with Giuliani soon after.

Reporting suggests that the bribery allegation was brought to the FBI’s attention by Giuliani. In an interview on Fox News this week, Barr claimed that the allegation came not from Giuliani but from the FBI itself, but that may be a semantic distinction between how it got to the FBI and how it got to Brady.

Regardless, the bureau spoke with a confidential source in June 2020 about the allegation, generating the FD-1023 document Comer and Grassley are seeking. That source, whose identity the bureau is eager to protect, is someone who had been paid by the bureau for information in the past and is considered credible — though that of course doesn’t extend to the Burisma executive with whom the source spoke. It’s the executive who alleged the bribery, money purportedly offered in part to halt the investigation of Burisma by Shokin.

An investigation, remember, that doesn’t appear to have existed.

There are other problems with the story, too. The House Oversight Committee has been breathlessly dissecting Hunter Biden’s finances in an effort to build out a story about the corruption of “the Biden family.” (There’s no evidence of payments to Joe Biden, hence the blurred allegation against the family broadly.) The committee has detailed how payments from Chinese actors, for example, appear to have been divvied up between people linked to Hunter Biden or his uncle.

Yet there is apparently no evidence of a $5 million payment to Hunter Biden. That Comer has spent the month fighting with the FBI about releasing an unredacted version of the interview form instead of, say, finding the $5 million in the voluminous financial documents his committee possesses is telling.

So is the fact that no charges for bribery were brought against Joe or Hunter Biden. In a statement, a spokesperson for the Oversight Committee Democrats said that the bureau, in showing the document to members of Congress, “informed the Committee, in no uncertain terms, that this assessment was closed in August 2020 after it failed to identify sufficient evidence to justify further investigation.”

On Fox News, Barr claimed that there was no further investigation by Brady because that wasn’t Brady’s mandate. He and committee Republicans have suggested that the interview became part of the ongoing investigation of Hunter Biden in Delaware, though there’s no evidence that Biden is under investigation for being party to any sort of bribe.

On Monday, Grassley attempted to inject a new wrinkle into the discussion.

“According to the 1023, the foreign national possesses fifteen audio recordings of phone calls between him and Hunter Biden,” he said from the floor of the Senate. “According to the 1023, the foreign national possesses two audio recordings of phone calls between him and then-Vice President Joe Biden.”

“What, if anything, has the Justice Department and FBI done to investigate?” he added.

It’s really important to remember that, while this is new information — purportedly redacted from the version of the document shown to Congress — it is not new evidence. This is the same alleged executive talking to the same FBI source in the same document. In other words, the claim that these recordings exist comes from the same person who alleges that the bribe was paid. It is of no more credibility than the original claim.

It also fairly obviously undercuts Grassley’s point. If there were recordings, that would seem to suggest that the FBI would have even more grounds to move forward with a probe — without appearing to have done so. Grassley is arguing that, given the breadth of allegations from the executive, it’s bizarre that the FBI didn’t investigate. The more obvious conclusion is that the claims were not the smoking gun Grassley is presenting.

Even Comer pumped the brakes on it. He was asked, during an interview on Newsmax, if the recordings were “legit.” He confirmed that the recordings were mentioned in the 1023 — but “we don’t know if they’re legit or not” and that they were simply claimed to exist by the executive with whom the FBI source spoke.

Grassley did something similar when a Fox News host asked him whether the document was “damning” for President Biden.

“There’s accusations in it, but that’s — it’s not for me to make a judgment about whether these accusations are accurate or not,” he said. “It’s … my job to make sure the FBI is doing their job.”

As journalist Marcy Wheeler notes, Comer and Grassley appear to be engaged in precisely what Republicans have long alleged about the dossier of reports compiled about Trump by former intelligence officer Christopher Steele: elevating questionable allegations from foreign sources that are transmitted by a paid FBI informant. But the target of these allegations is Biden, so they’re presented with a default credulousness.

It is unquestionably possible that some element of the allegation is true. We know that Hunter Biden was paid by Burisma to sit on its board — almost certainly because of his last name — and it’s not hard to imagine that he was involved in some even sketchier transactions. It is also possible that the then-vice president was also involved, though the allegation as it is currently understood doesn’t make much sense.

But it is also the case that Comer, Grassley and their allies are more interested in elevating the allegation than evaluating it. Since that news release at the beginning of May and its initial claim that Biden was bribed, the allegation has not gotten more credible. It was likely tied back to Giuliani? The FBI had it and didn’t pursue a probe? Despite there being “tape recordings”? And Oversight never got wind of the alleged $5 million payment?

Republicans have an easy response to this: The FBI is corrupt and anti-Trump. But that’s just begging the question.

Update: Two members of Congress who have seen the 1023 told the New York Post that the executive at issue was Burisma founder Mykola Zlochevsky. In 2020, former Giuliani aide Lev Parnas — then himself under indictment on federal charges — told Politico that Giuliani had met privately with Zlochevsky in mid-2019, in the middle of Trump’s effort to get Ukraine to announce an investigation into Biden.

“Asked to detail any contacts he had with Joe Biden from 2013-2019, and whether Hunter ever facilitated any meetings,” Politico’s Natasha Bertrand wrote, “Zlochevsky replied: ‘No one from Burisma ever had any contacts with VP Biden or people working for him during Hunter Biden’s engagement.’ “

Giuliani, Parnas said, was furious at that answer.

The right, and that includes the House DOJ and Senators like Chuck Grassley, are pimping this ludicrous non-scandal. It’s done to appease the cult so they can believe that Biden will soon be in the docks himself. But it’s nuts. I only share this with you so that in casesomeone confronts you with it you’ll understand their hysterical babble.

Newsom FTW

Published by digby on June 13, 2023

California Gov. Gavin Newsom (D) pierced the Fox News bubble on Monday, pushing back on host Sean Hannity’s claims about President Joe Biden, mocking House Speaker Kevin McCarthy (R-Calif.) and ripping Florida Gov. Ron DeSantis (R) over his treatment of migrants.

Hannity tried to defend DeSantis, who has been shipping migrants around the country in what critics have ripped as a political stunt done to raise his profile as a 2024 presidential candidate.

But Newsom wasn’t having it.

“Why do you use people as pawns?” Newsom asked. “What faith tradition teaches you to treat human beings like this ― to belittle them, to demean them?”

Hannity suggested a TV debate ― moderated by himself, of course ― between Newsom and DeSantis.

“I’m all in, count on it,” Newsom said.

“You would do a two-hour debate with Ron DeSantis?” Hannity said.

“Make it three,” Newsom said. “Do it with one-day notice with no notes, I look forward to that. We could talk about his zest for demonization, we could talk about his assault on free enterprise.”

He also made a 2024 prediction about DeSantis.

“Donald Trump is going to clean his clock,” he warned.

Newsom also took on Hannity’s constant claims that there’s something wrong with Biden.

“I don’t think Joe Biden is mentally, physically capable of being the president of the United States,” Hannity said.

Newsom pointed out Biden’s wins on a series of issues, including the infrastructure deal and the CHIPS and Science Act.

“Joe Biden’s created more jobs, six times more jobs, than the previous three Republican presidents combined,” Newsom said.

Hannity played a supercut of Biden’s verbal gaffes and physical stumbles and asked if Newson thinks he’s “cognitively strong enough” for the job,

“I don’t think he’s capable, I know he’s capable. I see results. I’ve seen a masterclass in results the last few years,” Newsom said, ticking off the accomplishments, then noted the bipartisan deal to raise the debt ceiling that left many conservatives fuming.

“Look what he just did to McCarthy,” Newsom said. “Kevin got played by the president of the United States.”

Highlights:

People should not underestimate him.

How Judge Cannon can torpedo the case

Published by digby on June 13, 2023
Judge Aileen M. Cannon speaking on camera during her confirmation hearing, with an American flag and framed certificates behind her.

I think we can almost certainly count on shenanigans from her. She’s obviously MAGA and it’s very bad luck that the case wound up back under her. Charlie Savage at the NY Times breaks down the possibilities:

Last year, Judge Cannon, a Trump appointee, briefly disrupted the documents investigation by issuing rulings favorable to him when he challenged the F.B.I.’s search of his Florida club and estate, Mar-a-Lago, before a conservative appeals court ruled that she never had legal authority to intervene.

It remains to be seen how she will handle her second turn in the spotlight. The scope of her role before the trial also is unclear: She is not presiding over Mr. Trump’s initial hearing on Tuesday, and could refer some pretrial motions to a magistrate judge who works under her. But here is a closer look at how her decisions as the judge presiding over the trial — like on what can be included and excluded — could affect the case.

Slowing the Calendar

Mr. Trump has long pursued a strategy of trying to delay legal proceedings against him to run out the clock. If the trial can be put off until after the 2024 presidential election, he or another Republican nominee could enter office and shut down the case.

“I think the Department of Justice will do everything in their power to bring the case as soon as possible, but it will be a challenge to bring it before we are well into the primaries,” said Brandon L. Van Grack, a former federal prosecutor who has worked on complex cases involving national security and classified material.

He added, “These issues are incredibly important to understand because we are talking a case that could influence an election — and more than just the general election.”

Classified Evidence

Before the trial begins, there is almost certain to be extensive fights behind closed doors over the use of classified evidence, a matter governed by the Classified Information Procedures Act, or CIPA. The law was intended to reduce the opportunities for so-called graymail in criminal cases involving national security, in which defendants threaten to expose sensitive secrets unless prosecutors drop charges against them.

One potential issue: whether the government has to publicly expose all 31 classified documents that are the basis of the 31 counts against Mr. Trump for illegally retaining national-security secrets. Their contents are key evidence for whether they qualify as the type of information protected by the Espionage Act.

CIPA establishes court procedures to sometimes shield sensitive information from the public, including by redacting some documents or substituting summaries. But defense lawyers can argue that they need to discuss their full contents in open court for the trial to be fair.

If Mr. Smith obtained the intelligence community’s consent to use those 31 documents based on assurances that he would keep them from broader public dissemination, any rulings by Judge Cannon requiring them to be shown in open court could lead the government to instead drop some of the charges based on those documents.

Mr. Trump’s defense lawyers are also likely to argue that the government is obligated to turn over related classified material in the “discovery” phase, and they may want to use some of those records in open court, too. Either side can appeal Judge Cannon’s decisions about these matters before the trial, creating additional opportunities for delay.

Attorney-Client Evidence

In laying out charges that Mr. Trump obstructed the government’s efforts to retrieve the documents and caused one of his lawyers to make a false statement to the Justice Department, federal prosecutors described Mr. Trump’s interactions with his legal team. These include how he apparently suggested destroying classified documents and hid from his lawyers that he had boxes of files removed from a storage area after a subpoena.

Normally, prosecutors cannot subpoena defense lawyers and force them to testify or turn over notes about their client. Under attorney-client privilege, the confidentiality of such discussions and work is protected.

That privilege is meant to protect the rights of people who are in trouble over a past potential offense. People need to be able to talk candidly with their lawyers about what happened to understand their options. That would be impossible if whatever people admitted could be used against them as evidence in court.

But there is an exception: when attorney-client communications are part of continuing or future crimes. If judges think there is sufficient evidence to activate this “crime-fraud exception,” they will uphold a subpoena forcing the defense lawyers to provide evidence about what they and their clients said to each other.

During the investigation, Judge Beryl A. Howell of the Federal District Court for the District of Columbia ruled that the exception applied, forcing Mr. Trump’s lawyers to provide information to the grand jury. But Judge Cannon is not bound by Judge Howell’s decisions when it comes to what information should be presented to a jury.

During pretrial motions, if Mr. Trump’s lawyers ask Judge Cannon to suppress the evidence to protect attorney-client privilege and she does so, prosecutors could appeal — but that would further delay the case.

If she were to defer a decision until after the trial has started, prosecutors could interrupt the trial and try to appeal using an extraordinary and rarely used tactic called a writ of mandamus, said Paul F. Rothstein, a Georgetown University law professor and specialist in criminal procedure.

Prosecutorial Misconduct Claims

Mr. Trump and his legal team have signaled that they will attack prosecutors and investigators. That could mean pretrial motions to dismiss the charges based on any allegations that prosecutors committed misconduct like improperly pressuring witnesses, vindictive prosecution and selective prosecution.

It is routine for defendants to make such claims, and it is routine for judges to briefly look at and reject them. The standards for finding a violation are very high. But if Judge Cannon entertained such claims, she could demand information from prosecutors, hold hearings and essentially put the investigators on trial before Mr. Trump faces any jury.

Jury Selection

Prosecutors and defense lawyers will have a certain number of “peremptory” challenges in which they can block someone from being on the jury without stating a basis. But they also have unlimited challenges to potential jurors “for cause” if they can point to signs that those people are biased. Judge Cannon will have the power to accept or reject any “for cause” challenges, potentially tilting the composition of the jury.

‘Rule 29’ Motions to Acquit

After the prosecution and defense present evidence, the defense can make a so-called Rule 29 motion asking Judge Cannon to acquit Mr. Trump on one or more of the charges, arguing that the evidence from prosecutors was deficient.

She could do so in two ways: acquit Mr. Trump right away, or let the matter go to the jury and then enter an acquittal only if the jury instead wanted to convict.

If the judge waited, leaving a chance for the jury to vote for conviction, then prosecutors could appeal the judge’s acquittal order and get it reversed, said Julie O’Sullivan, a Georgetown University law professor and former federal prosecutor. But if the judge declared the defendant acquitted before any verdict by a jury, she said, that outcome would be final and prosecutors could not appeal it.

Hung Jury

In federal criminal trials, all 12 jurors must unanimously agree that prosecutors have proved each of the elements of a crime beyond a reasonable doubt to convict.

If the jury can never reach consensus, the result is a mistrial, and prosecutors would then have to decide whether to start over with a new trial. Judges typically try to avoid that by encouraging jurors to resolve their disagreements and reach consensus with a holdout, and by giving them more time to deliberate. But if there is an early disagreement, a judge could also kneecap the government by immediately declaring a mistrial.

I hope that some of the optimism I keep hearing about this judge rising to the occasion is true. But honestly I doubt it. I keep remembering Bush v Gore when even the alleged moderate Sandra Day O’Connor was seen getting very angry about the Florida Supreme Court ruling that they needed to count all the votes. Even the most judicious of GOP judges get caught up in partisan passions and this judge is anything but a judicious jurist. We already know that.

So I will not be surprised to see this turn into a legal circus that might not even be decided until after the election. There are many appeals to be had even if the trial is finished by that time. And the truth is that if he’s found guilty I think it’s likely the election will still be as close as it was last time. If he wins … God help us. If he loses again well… we’ll just have to see if Republican voters would be willing to go to the mattresses for him again.

Best not be ostriches

Published by digby on June 13, 2023

Tom Nichols on how to deal with the threats:

I made a joke on Twitter the other day that I thought deserved a better reception than it got. I was reading about Kari Lake bleating about how other Americans, if they wanted to “get” to Donald Trump, would have to “go through me” as well as “through 75 million Americans just like me … most of us are card-carrying members of the NRA.” I said that Lake’s political career was like the origin story of Jonathan Matthias.

I made that joke because I’m a nerd and I’m old. Matthias is the bad guy from the classic 1971 Charlton Heston movie The Omega Man,a postapocalyptic thriller in which almost everyone in the world is wiped out by a germ-warfare disaster. Heston has an antidote; the other survivors end up as light-sensitive ghouls that can go out only at night. Matthias (played by the legendary character actor Anthony Zerbe) was, before the plague, a blustery celebrity television newscaster, and he later uses his charisma to organize his fellow sorta-vampires into a cult built around hating Heston and all modern technology.

It’s less funny if you have to explain it, but the idea of Kari Lake going from television anchor to cult leader after a pandemic seemed pretty on the nose, and her whole Grand Guignol act is so close to Zerbe’s melodramatic thundering that I couldn’t resist.

But maybe the joke isn’t that funny. Lake may be inane, but insofar as any of her followers believe that she’s issuing a call to action, she is also dangerous. She’s not alone; after news of Trump’s indictment broke, two of the most disgraceful members of Congress, Andy Biggs and Clay Higgins, essentially called for open conflict with their fellow citizens. “We have now reached a war phase,” Biggs tweeted on Friday. “Eye for an eye,” he added, going full Hammurabi.

Higgins, meanwhile, issued a tweet of paramilitary babble:

President Trump said he has “been summoned to appear at the Federal Courthouse in Miami on Tuesday, at 3 PM.”

This is a perimeter probe from the oppressors. Hold. rPOTUS has this.

Buckle up. 1/50K know your bridges. Rock steady calm. That is all.

As Jeff Sharlet wrote in The Atlantic this weekend, Higgins is trying to sound like a militia commander, issuing orders to his troops on behalf of “rPOTUS,” or the “real president of the United States.”

My first reaction to both of those tweets was basically: Whatever, Sgt. Rock.But perhaps that’s not enough. Trump and his cult followers, especially those in public life, have made threats of violence a routine part of the American political environment. (I have received many such threats over the years that I’ve been writing about Trump.) Notice, for example, how Trump has gone out of his way to name Special Counsel Jack Smith’s wife: Trump knows that Smith is a tough prosecutor who has dealt with some hard characters and is unlikely to fear a weak man like Donald Trump, so he put Smith’s wife in the public eye—and in the crosshairs of his supporters. It’s become commonplace to say this is Mafia-like behavior, but that’s something of an insult to the old-school Mafiosi who generally left family members alone when settling their beefs.

As Sharlet noted, Trump’s most violent supporters are not nearly the majority they think they are, so there’s no point in fear-driven hysteria. Nevertheless, such people can be dangerous not only to their fellow citizens but to the constitutional order itself, by inducing anxiety about democracy among ordinary citizens and potential office seekers, as well as a reluctance to speak out and participate in our system of government. (Also, it takes startlingly few individuals who are willing to commit acts of violence to do real damage.)

So maybe what we need is a solid balance of vigilance and scorn. National politicians gibbering their own down-home versions of “Hail Hydra” should be an ongoing scandal: Such behavior is un-American, and every supporter of American democracy should respond with the self-assured contempt that free people must bestow on the aspiring authoritarians among us.

I know that some readers will object, saying that spotlighting such behavior in the media spreads its reach, but I disagree: The nature of a hyperconnected, internet-driven society means that the kind of people who admire someone like Clay Higgins already know where to find him. Higgins knows this too, which is why he sent his message on Twitter—or “in the clear,” as intelligence folks would say. He wasn’t sending instructions to putative comrades waiting for a sign; rather, he was apparently hoping that ordinary Americans would see all this spy-speak applesauce and become fearful that hidden armies are waiting to avenge the arrest of Donald Trump.

In the media, every elected Republican should be asked every day about these threats, especially those from members of Congress, not because such questions will induce a sudden fit of conscience in Kevin McCarthy or Mitch McConnell but because after the violence of January 6, 2021, the voters have a right to know if a national political party is going to stand behind members talking about “war” and pretending to issue marching orders to seditionists. (CNN’s Dana Bash tried to get an answer from Representative Jim Jordan on Sunday. It went as you’d expect, but at least she asked.)

Finally, there’s nothing wrong with some dismissive scorn among sensible voters. These people are not 10 feet tall. They are, in fact, small and ridiculous. (This is why I couldn’t help but laugh when Lake hissed about the NRA; the hooded face of Matthias just popped into my head unbidden.) As I wrote more than a year ago, naming lunatics and shaming poltroons is essential to a healthy democracy. But the prodemocracy movement must fight with the confidence and maturity of adults:

Ditch all the coy, immature, and too-precious language about former President Donald Trump and the Republicans. No more GQP, no more Qevin McCarthy, no more Rethuglicans and Repuglicans. No more Drumpf. No more Orange Menace … Be the adult alternative to the bedlam around you.

Juvenile nicknames too easily blur the distinction between prodemocracy voters and the people they’re trying to defeat. If you’ve ever had to endure friends or family who parrot Fox-popular terms like Demonrats and Killary and other such nonsense, think for a moment how they instantly communicated to you that you never had to take them seriously again.

I know it’s hard to find the right balance between vigilance and alarm, between scorn and flippancy; I’m not always sure how to do it myself. It’s a line all of us find difficult to walk, because we’ve never had an American political scene so thoroughly infested with kooks, conspiracists, and would-be traitors. But remember: They are a minority, and they know it, and many of their leaders are likely more fearful—of irrelevance, of change, of failure—than anyone else. Take their threats seriously, but with the faith that American democracy was here before them and will be here after them.

I think he’s right. It’s always tempting to say “don’t give them any attention” but you have to realize that they will get attention inside their bubbles regardless and ignoring that only leaves everyone else unenlightened and unprepared.

There is no easy answer to all this, that’s for sure. But putting your head in the sand probably isn’t the best response.

More red alerts

Published by Tom Sullivan on June 13, 2023

Get busy fighting or brace for democracy dying

“A Red Alert for Voting Rights” is the Zoom call scheduled tomorrow by Carolina Forward. The topic is North Carolina politics. But the red alert is broader than that.

Twitter followers of former Ohio state Democratic Party chair, David Pepper (“Saving Democracy: A User’s Manual for Every American“), know he’s been leaning hard into Ohio Republicans’ attempt to thwart a citizen initiative to secure abortion rights in the state constitution. The GOP-dominated legislature has scheduled an August special election to pass a constitutional amendment that would make it harder for citizens to pass their “Right to Reproductive Freedom” amendment in November.

Democracy Docket has an update on that Ohio fight:

On Monday, June 12, the Ohio Supreme Court ordered the Ohio Ballot Board and Ohio Secretary of State Frank LaRose (R) to rewrite parts of the ballot language for Senate Joint Resolution 2, a proposed amendment to the Ohio Constitution that would increase the threshold to pass constitutional amendments from 50% to 60%. 

This decision stems from a lawsuit filed in late May by a group of Ohio voters and the group One Person One Vote arguing that the adopted ballot title and ballot language for the proposed amendment is inaccurate and misleading to voters in violation of the Ohio Constitution and state law. 

In particular, the petitioners alleged that the ballot’s title — “ELEVATING THE STANDARDS TO QUALIFY FOR AND TO PASS ANY CONSTITUTIONAL AMENDMENT” — is inaccurate. 

In today’s order, the Ohio Supreme Court agreed with the petitioners in part, holding that “the word ‘any’ is likely to mislead voters” since it “could give voters the false impression that the proposed amendment would make it more difficult to qualify all proposed constitutional amendments for the ballot.” In reality, the proposed amendment — if passed — would only increase the ballot-qualification standards for citizen-led “initiative petitions but not for constitutional amendments proposed by the General Assembly or at a constitutional convention.”

[…]

This decision is a victory for Ohio voters since the ballot language and title will have to be rewritten to be more clear. Aside from this case, another lawsuit filed by One Person One Vote regarding S.J.R. 2 is currently pending in the Ohio Supreme Court. That lawsuit asks the state Supreme Court to prohibit LaRose from holding a special election on Aug. 8, 2023 regarding S.J.R. 2, alleging that it is against state law to hold a statewide election in August. 

Meanwhile, North Carolina Republicans have filed multiple bills aimed at rewriting the rules for voting, and stripping the governor of authorities in the administration of elections.

Democracy Docket again:

On Monday, June 12, North Carolina Republicans introduced Senate Bill 749, a bill to reform the structure of the state and county boards of elections, giving lawmakers more power in the process. 

S.B. 749 would remove the governor’s power to appoint board members and grant it to the North Carolina Legislature instead. Political parties would be able to nominate members, but the Legislature would not be required to follow their suggestions. Additionally, the boards would have an even number of Democrats and Republicans. Under current law, the party that holds the governor’s office (currently Democrats) is empowered to appoint a majority of board members.

This is not the first time that the North Carolina Republican Party has attempted to restructure the board. Following the election of Gov. Roy Cooper (D) in November 2016, but prior to his term’s commencement, the GOP-led Legislature enacted two bills, S.B. 4 and H.B. 17, that abolished the existing Board and Ethics Commission and created a new combined Bipartisan State Board of Elections and Ethics Enforcement. Former Gov. Pat McCrory (R) signed the legislation into law the same day. In January 2018, after Cooper sued Republican legislators, the North Carolina Supreme Court found the bills violated the separation-of-powers provisions in the state constitution as they “imping[ed] upon the Governor’s ability to faithfully execute the laws.” 

In 2018, voters rejected an amendment by 62% that would have similarly granted the Legislature more control over the state board of elections. All living former governors of the state (three Democrats and two Republicans) came together publicly and urged North Carolinians to vote against the amendment with former Gov. Jim Martin (R) asserting,”This is not about partisan politics. It’s about power politics, and it must be stopped.”

NC S.B. 749 comes on the heels of proposed Senate Bill 747 that imposes a series of new voting restrictions:

The bill was introduced on the heels of reporting from WRAL, a local North Carolina outlet, that state lawmakers were drafting legislation with input from the Election Integrity Network, a right-wing organization run by Cleta Mitchell, who led former President Donald Trump’s legal effort to overturn the 2020 election results. Mitchell stated she did not help draft any legislation.

S.B. 747, according to journalist Will Doran, appears to be the first of the new election bills. The Republican-controlled North Carolina Legislature has a narrow veto-proof majority after formerly Democratic state Rep. Tricia Cotham (R) switched parties in April. Now, the North Carolina GOP has the votes to override prospective vetoes from Gov. Roy Cooper (D).

Stay woke. Not all the attacks on democracy today are happening in Miami.

Norm!

Published by Tom Sullivan on June 13, 2023

Norms no longer quaint, says Torture Dude

Mar-a-Lago’s Hoarder-in-Chief heads to his arraignment in Miami this afternoon on federal charges brought by Special Counsel Jack Smith of willful retention of national defense information, obstruction and conspiracy.

The “Florida Republican Assembly” has chartered four or more buses to bring Donald Trump’s supporters from Orlando to make a show of their fealty to Dear Leader. The group’s executive director, Lou Marin, tells the Miami Herald his group is a “Judeo-Christan grassroots organization committed to restoring the Republican Party to it’s founding principles.” He didn’t specify.

The day will tell whether how many will show or if armed terrorists will be among them.

Bush administration torture memo author John Yoo knows how the United States should deal with terrorists. But that was two decades ago. Yoo, now a law professor at the University of California, Berkeley School of Law has seen his reputation whitewashed by outlets such as the New York Times and now Bloomberg Law. Yoo co-authored a Monday op-ed with Robert Delahunty of the Claremont Institute Center for the American Way of Life charging the Biden Department of Justice with crossing “a constitutional Rubicon” in permitting the indictment of Trump.

How quaint

“Biden administration officials must explain why prosecuting Trump for misuse of classified documents justifies disregarding two centuries of constitutional practice,” the pair write. “Presidents remain subject to the law just as anyone else.”

Do you sense a BUT coming? (my highlight)

“But our system has long understood that the Justice Department—which assists the president in his duty to ‘take Care that the Laws be faithfully executed’—can’t prosecute every person for every violation of every federal law.”

Deference to the king follows, naturally. The very idea of equal justice is as quaint as Geneva. Now, if the Department means to pour the Rubicon over a cloth covering Trump’s face, Yoo might have to reassess.

Yoo appeared Monday afternoon on Fox Business to tell Neil Cavuto, “We’re breaking an institutional norm that has been there since the beginning of our country, which is leave former presidents alone.” And former deputy assistant attorneys general, perhaps?

Trump violated institutional norms with abandon during his four years in the Oval Office. But indicting him for crimes he committed after leaving office for Yoo is a norm too far. Unprecedented means unprosecutable, Yoo argues.

“The torture guy is wrong here just simply as a matter of history,” replied MSNBC’s Chris Hayes on Twitter. “Nixon was almost certainly going to be prosecuted after leaving office and was only saved by Ford’s wholly unprecedented blanket pardon.”

Now Trump is counting on winning reelection to the presidency so he can issue a blanket pardon for himself for crimes committed in his interregnum.

“Trump will almost certainly plead not guilty,” The Guardian reports, in outlining what will happen in court today:

Defendants can choose to have the indictment read to them in open court, but many choose to waive that in order to get the hearing over quickly, said Barbara McQuade, who served as the US attorney for the eastern district of Michigan from 2010 to 2017.

The judge can also set bail and decide to detain a defendant in custody while trial is pending.

“The judge will consider the bail issue, but I would be stunned if Trump were held pending trial. A more likely scenario is that Trump will be ordered to surrender his passport and promise to pay some sum of money if he fails to appear,” McQuade said in an email.

“The court may consider as a condition of bond some sort of gag order prohibiting Trump from discussing the case, the prosecutor or the judge, but that can be tricky in light of first amendment concerns because Trump is running for president,” she added.

The revolution indictment will not be televised. Not like the insurrection for which Trump’s involvement is still under investigation. Please be patient. Jack Smith is not done with Donald yet.

Armed Terrorists Will Surround Miami Courthouse Tuesday in Hostage Situation @spockosbrain

Published by Spocko on June 12, 2023

That’s how I’m describing what will happen at the Wilkie D. Ferguson Jr. US Courthouse. The MSM headline won’t call them terrorists or mention the guns they will be carrying concealed. And the hostage isn’t Trump, it’s counter protestors, “Antifa”, journalists covering the event and law enforcement. They are focusing on some of same targets as January 6th.

The Trump supporters are even busing their supporters in like they did on on January 6th. (It doesn’t look like Charlie Kirk is behind the buses this time, but has anyone talked to Ginni Thomas?)

The other hostage is the American public and our sense of feeling safe at protests. When people are armed, deadly violence could happen at any second. It’s not a peaceful protest anymore, it’s a hostage situation.

We KNOW that cops prepare for and treat armed people differently, especially those with a history of violence. When the media knows that there will be armed people there, THEY need to talk about this differently. And ask some different questions, like:

Will the FBI be arresting people “left of boom” Monday?
There should be arrests! But I don’t expect to hear about them for days, (or ever) if they do. Which is part of the DOJ’s procedure, but it would be nice to know they are proactive.

Will known domestic terrorists groups like the Proud Boys be there?
Their members helped planned January 6th, participated in it and some have been convicted for seditious conspiracy. What about other individuals & groups?
What does “the chatter” say?

Will arrests be made of armed terrorists AT the event?
Cops don’t want to put themselves in a situation where they could be shot. And the armed right wingers KNOW this. They expect the cops to treat them “politely” because they are armed. When someone IS arrested it’s usually after the event.
(See this story about a Proud Boy who pulled gun at a Portland protest, there was no arrest so he returned armed at a Gresham event. He was finally arrested after multiple egregious actions. Proud Boy Alan Swinney sent to prison for 10 years)

Above, armed members of the right-wing extremist group The Boogaloo Boys gather for gun rights on January 18, 2021, in Richmond, Virginia. SPENCER PLATT/GETTY
  • The same failure will happening on Tuesday unless the DOJ learned from January 6th.

Threatening speech is NOT protected speech

When Proud Boys or Three Percenters are openly carrying a gun at a protest it’s designed to intimidate. They WANT us to know the threat of deadly violence backs up their words. That’s threatening speech. And threatening speech is NOT protected speech.

When they are holding signs in support of Trump in a place where they COULD legally have a concealed gun, they WANT us to know they could be packing. They want to use the 1st Amendment protections we all have, but that’s not enough for them. They WANT us to know the threat of deadly violence is right there and people should treat them with respect, or else!

Alan Swinney trial Witness Brittany Correll reported seeing Alan J. Swinney point a real gun at counterprotesters outside the Justice Center on Aug. 22, 2020. “A bunch of people ducked, and then I saw the gun,” she testified.


I’ve been reading the coverage of the preparation for this. It’s the same type of coverage. Post January 6th it MUST be reported differently.

There is a lot of hopeful and magical thinking in the media about this arrest based on what happened in New York. But New York has different laws, different law enforcement and a different population.

More than 2.61 million people had Florida concealed weapons licenses as of Nov. 30, according to the News Service of Florida.Dec 25, 2022 . Starting July 1st 2023, Florida has permitless concealed carry so ANY resident, or non-resident, of Florida is eligible to carry a concealed firearm in public.

These facts change the dynamic of what is happening on the ground in Florida. We need to change how to talk about this hostage situation.

How bad will it get? Another possible predictive headline for Tuesday. (h/t George)

Will “Proud Boys” Use Floriduh’s “Stand Your Ground Law” to Murder Counter Protestors?

My prediction: Tuesday, armed terrorists will surround Miami’s courthouse in an hours long hostage situation
But that’s not how the media will cover it.
Cross posted to Spocko’s Brain