A day of tragedy.

October 18, 2023

          It was a day of tragedy and disappointment in Israel on Tuesday as events on the ground overtook diplomatic efforts. A missile struck a hospital in Gaza and inflicted mass casualties. The Hamas-run Health Ministry in Gaza claimed that Israel attacked the hospital—a claim that nearly every outlet in the world dutifully repeated before hearing from Israel. Several hours later, Israel issued a statement saying that an errant missile launched by Hamas struck the hospital.

          Israeli Prime Minister Netanyahu said the following:

An analysis of IDF [Israel’s army] operational systems indicates that a barrage of rockets was fired by terrorists in Gaza, passing in close proximity to the Al Ahli hospital in Gaza at the time it was hit. Intelligence from multiple sources we have in our hands indicates that Islamic Jihad is responsible for the failed rocket launch that hit the hospital in Gaza.

          As of Tuesday evening, competing narratives clash on the airwaves and the internet. But, based on the horrific pictures of the mass casualties, protestors and leaders in the Middle East have decided that Israel is at fault—regardless of who fired the missile.

          Biden’s summit with the leaders of Jordan, Egypt and the Palestinian Authority was a casualty of the missile strike. The summit was canceled before Biden departed for the Middle East.

          President Biden condemned the missile attack, saying

I am outraged and deeply saddened by the explosion at the Al Ahli Arab hospital in Gaza, and the terrible loss of life that resulted. Immediately upon hearing this news, I spoke with King Abdullah II of Jordan, and [Prime Minister Benjamin Netanyahu] of Israel and have directed my national security team to continue gathering information about what exactly happened.

The United States stands unequivocally for the protection of civilian life during conflict and we mourn the patients, medical staff and other innocents killed or wounded in this tragedy.

          Despite the cancelation of the summit, Biden is nonetheless in the air on Tuesday evening, heading to meetings with Prime Minister Netanyahu and his unity cabinet. National security spokesperson John Kirby told pool reporters on Air Force One that Biden intends to ask Netanyahu “tough questions” about the attack on the hospital.

          The diplomatic and legal issues are secondary to the deaths that occurred at the Al Ahli hospital. They are tragic and heartbreaking. Full stop.

          As the US stands steadfastly by Israel’s side, it is incumbent on Israel to hold itself to account under international law, and it is incumbent on the US to do so as well. As President Biden has affirmed, Israel has the right to defend itself. But it also has an obligation to adhere to international law—an obligation both the Israeli government and its military accept, even as Hamas violates that law in every imaginable way. For a general discussion of the law of war and related international norms, see Just Security, Expert Guidance: Law of Armed Conflict in the Israel-Hamas War.

          Against that backdrop, the Israeli military is saying that a ground offensive into Gaza “is not a certainty.” If there is any way to avoid an invasion, Biden should urge Netanyahu to pursue that alternative strategy.

          Finally, expectations are that the US and Israel will announce a humanitarian corridor for supplies and civilians on Wednesday during a joint press conference with Biden and Netanyahu. Let’s hope that the leaders of Israel and the US make that announcement and that it is the first step in the long road back to peace.

Jim Jordan fails to win election for Speaker of the House.

          Jim Jordan’s campaign of intimidation failed to convince 217 Republicans to vote for him to become Speaker of the House. He garnered only 200 votes—with 20 Republicans voting for other candidates. Democrat Hakeem Jeffries received 212 votes—every Democrat in the House.

          Although Jordan had planned to push for a second vote on Tuesday as a way of pressuring hold-outs, acting Speaker Patrick McHenry recessed the House indefinitely while Republicans tried to come up with “Plan F”—or is it “Plan G?”  See generally, The Hill, Jim Jordan struggles in Speakership vote.

          Observers are split on Jordan’s prospects. Josh Marshall of Talking Points Memo believes that Jordan’s election is inevitable, while Minority Leader Hakeem Jeffries says that Jordan “clearly does not have the votes.” See BBC News, House speakership up in air as resistance to Jim Jordan hardens.

          Perhaps the most telling sign is that GOP Rep. Ken Buck said that the “No” votes against Jordan will increase in the second round of voting. See MSNBC, Rep. Ken Buck thinks Jordan could lose more votes for speaker in a second round.

          But the story is not “the horse race” between Jordan and anti-Jordan forces in the GOP. The story is that 200 House Republicans were willing to vote for someone described by former Speaker John Boehner as a “legislative terrorist” and who is an election denier, coup-enabler, coward who refused to honor a subpoena from a committee of the House of Representatives that he now seeks to lead. Jordan is a miserable person and bully who does not belong in Congress, much less as the Speaker of the House. Shame on Republicans for giving Jordan 200 votes!

          The good news is that momentum is building for a “temporary” Speaker who will serve through the budget showdown in November and the funding of our allies in Ukraine and Israel. Hakeem Jeffries acknowledged the possibility of supporting Speaker Pro Tempore Patrick McHenry for that role. See CSPAN, Leader Jeffries on Possibly Supporting Rep. McHenry as Speaker.

          Republicans are openly discussing the possibility of a “temporary acting Speaker Pro Tempore” with limited powers—a position that does not exist under the Constitution and cannot be created by legislation in the near term. (For example, Republicans would need a Speaker in place to create the position of “temporary acting Speaker Pro Tempore.”) If Republicans want to elect Patrick McHenry for a short stint until they get organized, they are free to do so. The sooner, the better.

          The dysfunction of the Republican caucus in the House of Representatives is the logical conclusion of the hostile takeover of the GOP by MAGA extremists. It is a debacle that has been years in the making and will not be over when Republicans finally elect a speaker. The MAGA hostile takeover will be complete when the GOP splits into two or more smaller parties. Spoiler alert: It already has; all that remains is formal recognition of that fact.

Judge Chutkan’s gag order against Trump.

          Judge Tanya Chutkan issued her gag order against Donald Trump on Tuesday. The order is here: Order and Memorandum Opinion –United States v. Trump. I recommend that you read the short order. In case you don’t the central rationale is this:

          Undisputed testimony cited by the government demonstrates that when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.

          Since his indictment, and even after the government filed the instant motion, Defendant has continued to make similar statements attacking individuals involved in the judicial process, including potential witnesses, prosecutors, and court staff.

          Defendant has made those statements to national audiences using language communicating not merely that he believes the process to be illegitimate, but also that particular individuals involved in it are liars, or “thugs,” or deserve death. The court finds that such statements pose a significant and immediate risk . . . .

          That risk is largely irreversible in the age of the Internet; once an individual is publicly targeted, even revoking the offending statement may not abate the subsequent threats, harassment, or other intimidating effects during the pretrial as well as trial stages of this case.

          Trump has already filed a notice of appeal. He will lose. See article in Slate by Dennis Aftergut and Frederick Baron, Gag order against Trump will withstand First Amendment claim. Per the authors,

Perhaps most importantly, the court moored the order in the safest harbor available—forbidding targeting anyone associated with the case from issuing what the Supreme Court has called “true threats of violence.” True threats are defined as words that “subject individuals to ‘fear of violence’ and to the many kinds of ‘disruption that fear engenders.’”

As recently as June, the Supreme Court ruled that such words are not protected by the First Amendment.

          Odds are that Trump will not be able to restrain himself and will violate Judge Chutkan’s order in a matter of days. At that point, Judge Chutkan will issues sanctions against Trump. What will those sanctions be? It all depends on how he violates the gag order.

         Although Trump views his jousting with prosecutors and witnesses as a political game of chicken, a recent disclosure in a lawsuit pending the UK show that Trump abused the declassification process to engineer the “disappearance” of two intelligence sources in Russia. Read on!

 Trump disclosures while president lead to disappearance of human sources in Russia.

          One of Trump's last acts as president was to declassify the testimony of the author of the “Steele dossier” to the Mueller investigation. The Guardian reported on Tuesday that the declassification of that testimony led to the “disappearance” of two human intelligence sources in Russia. See The Guardian, Russian sources disappeared after Trump declassified ex-spy’s evidence, UK court told.

          As explained by The Guardian, Christopher Steele said the following to a UK court:

In a witness statement released on Tuesday, Steele said publication of his testimony to the Mueller investigation on the matter, originally classified secret, was an “egregious and reckless act” that “served no purpose other than to expose me and . . . [my company’s] sources . . . .

He said: “Two of the named Russian sources have not been seen or heard of since. The publication of this document did serious damage to the US government’s Russian operations and their ability to recruit new Russian sources.”

          In short, Trump used his power to declassify information to ensure that human sources in Russia were exposed—inflicting a grave injury to the US’s ability to recruit human intelligence sources in the future. Trump is a national security risk. He is a threat to the safety and effectiveness of the US intelligence community.

US Supreme Court slaps US District Judge in Texas.

          Republicans have started not to accept “NO” as an answer from the US Supreme Court. The latest example occurred in the context of a US District Court Judge Judge Reed O’Connor in Texas who failed to abide by the Supreme Court’s order staying his invalidation a regulation requiring the registration of “ghost guns.”

          As explained by Ian Millhiser in Vox, as the Supreme Court issued a stay of the O’Connor ruling (which had nationwide effect), but O’Connor issued a new order invalidating the regulation as to two manufacturers of ghost guns who were parties to the case. By exempting two manufacturers for ghost guns, O’Connor effectively allowed for the nationwide sale of unregistered ghost guns—seemingly in violation of the Supreme Court stay of his earlier decision.

          The DOJ appealed the case to the Supreme Court for a second time and asked that O’Connor’s order be vacated (not merely stayed) pending resolution of the underlying case by the Supreme Court.

          In a one-paragraph opinion, the Supreme Court vacated O’Connor’s order—as requested by the DOJ. There were no dissents noted in the order. It may be that the Supreme Court is realizing that its own lawlessness has suggested to lower courts that they, too, can ignore the law—even a stay from the Supreme Court. See Vox, The Supreme Court’s brief, revealing new decision about guns, in Garland v. Blackhawk.

Virginia.

          The election in Virginia in November 2023 will be one of the most consequential before the 2024 general election. Registering voters and getting them to show up is a huge part of the battle. But ensuring the integrity of the vote is equally important. For the last seven years, Marc Elias has been a leading figure in the effort to protect the vote at the polling booth and in court. Marc and his firm served a leading role in defending Biden’s victory in 2020 against 60+ legal challenges from Trump.

          Marc Elias’s firm—Elias Law Group LLP—is working with VADEMS (Democratic Party of Virginia) coordinating trainings and volunteers for three critical voter protection functions: Poll Observers, Ballot Cure Phonebanks, and Ballot Cure Canvasses. Reporting voter suppression at the polling booth and curing ballots that might otherwise be excluded are incredibly important (and rewarding) tasks. Can you help?

          See the note I received from an associate at the Elias Law Group. I hope you will take the time to read the note, even if you can’t volunteer at this time.

          Republicans currently control every single local electoral board in Virginia and are already trying to limit access to the polls. The stakes are high this election and Republican activists are mobilizing to undermine Virginians' right to vote, as detailed in this New York Times article, "Conservative Election Activists Use Virginia as a Dry Run for 2024." 

          Can we count on you to help us ensure that all eligible Virginians are able to vote and have that vote counted?

All VoPro Mobilize Events Here (VADEMS).

Poll Observer Recruitment: 

If you are interested in helping us recruit poll observers, please sign up for our virtual phone banks Wednesdays from 6-7:30pm.

Ballot Cure Phonebanks (VADems)

          Help voters ensure their vote is counted! Absentee ballot voters who mistakenly omit information on their ballot have to provide additional information to their registrar to ensure their vote is counted. 

          Every phonebank starts with a training. 

Ballot Cure Canvasses (VADEMS)

          For people in Virginia or within driving distance. The team will be launching canvasses to help voters "cure" missing information on their absentee ballot returns and ensure their vote is counted!

Concluding Thoughts.

          The missile strike on a hospital in Gaza felt like a gut punch that manifested everyone’s worst fears—that mass civilian casualties are inevitable in Israel’s war against the Hamas terrorists. And it highlighted the hostile news and diplomatic environments in which Israel is conducting its war on terror, environments that blame Israel before the facts are known and despite the facts when they become known.

          The problems raised by the missile strike on Al Ahli hospital seem impossible, a modern Gordian knot made of uncuttable steel cable. But into that impossible situation walks Joe Biden. Will he solve the problems of the Middle East? No. But he might slow the pace of decisions, inject nuance and forward thinking into reflexive actions, and provide assurances that allow Israel to recalibrate its strategy.

          Biden will not interfere with Israel’s right to defend itself. But he might help Israel defend itself in a way that is consistent with the idea and promise of Israel, a way that creates room for progress on the fate of Palestinians—which is inextricably intertwined with the fate of Israel.

          Talk to you tomorrow.