A pre-determined result in search of a rationale.

February 9, 2024

A pre-determined result in search of a rationale.

Based on Thursday’s oral argument, it seems certain the Supreme Court will rule that Colorado cannot enforce the 14th Amendment disqualification bar against Donald Trump even though he engaged in insurrection. While it is clear the justices have agreed on the outcome, they are rummaging for a rationale to support their pre-determined conclusion. In short, the hearing was a result of a search of a rationale.

In fabricating a post-facto rationale for its desired outcome, the only remaining question is this: How much damage will the Court inflict on

(a)  The Constitution;

(b)  American democracy; and

(c)  The Supreme Court.

It seems evident that to reach its desired outcome, the Court must insert words, phrases, and limitations into the Constitution that do not appear in its text. In short, they will engage in judicial self-help by amending the Constitution. The “on-the-fly” revisions and additions to the Constitution will come from the same Court that overruled Roe v. Wade because the words “privacy” and “abortion” do not appear in the text of the Constitution.

In so ruling, the justices will reveal the hypocrisy of their prior decisions. While they eagerly anoint state legislatures as the arbiters of reproductive liberty and gatekeepers to the ballot box for voters, the justices clutched their pearls over the notion that states can enforce the constitutional qualifications for presidential candidates—as they do every four years. States routinely enforce the presidential qualifications relating to age (35), citizenship (natural-born citizen), residency (14 years), and term limits (two) on candidates for president.

And yet, the justices recoiled in fright at the notion that states can enforce the qualification that candidates not engage in insurrection after taking an oath to support the constitution. As with other faux-conservative principles, states’ rights are important until they interfere with the reactionary agenda of the Court’s majority.

To reverse Colorado’s ruling, the Court must engage not merely in judicial law-making; they will act as self-appointed, modern-day framers, creating a revised constitution. They will arrogate to themselves the authority to amend the Constitution because they do not have the courage or integrity to enforce the charter bequeathed to us by the original Framers.

Of the damage about to be inflicted on the three institutions listed above, the least consequential is the damage that will be inflicted on the Court—because the Court (as constituted) is beyond repair. Eight justices took the bench on Thursday, sitting beside one justice who is manifestly corrupt and objectively biased in the matter before the Court.

Not one of the eight justices uttered a word to acknowledge the urgent concern raised by Thomas’s presence on the bench—a justice whose spouse was involved in the insurrection that was at the heart of today’s hearing.

The most cynical and cowardly statements made today belonged to Justices Roberts and Alito, who repeated Trump's threat (posed as questions) that if Trump is removed from the ballot, other states will retaliate by removing Joe Biden. Whatever the Court does, surrendering to Trump's threats of “bedlam” is the most reprehensible outcome possible.

The obvious response to the implied threats of bedlam raised by Trump and repeated by Roberts and Alito is that if other states act unlawfully to remove Joe Biden from the ballot, the Supreme Court must uphold the rule of law by ensuring that any disqualification that violates the Constitution is overturned immediately.

There is more to be said, and I will link to expert commentary in tomorrow’s newsletter. For now, we should recognize that we are in the same place we were yesterday:

• We must defeat Trump by ten million votes (or more) in November.

• The courts aren’t going to save us—especially this Supreme Court.

• We knew that the Court would find a way to keep Trump on the ballot—an intuition that was confirmed today.

The only thing that changed between yesterday and today is that we were reminded—once again—of the supreme hypocrisy and reactionary agenda of the majority on the Supreme Court. That recognition stings anew each time we are reminded of the sorry state of this Court.

As always, the remedy lies in expanding the Court at the first opportunity to diminish the influence of Alito, Thomas, Gorsuch, Barrett, and Roberts. We can do that by retaining the presidency and the Senate and retaking the House. That goal is completely within our grasp.

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Special Counsel’s report exonerates President Biden in retention of documents case.

After Trump was indicted for unlawfully retaining defense secrets after a demand for their return, President Biden and former V.P. Mike Pence both found they had inadvertently taken classified documents when their terms as Vice President ended. Merrick Garland appointed a special counsel, Robert Hur to investigate Joe Biden. Hur is a Republican former US Attorney appointed by Donald Trump.

Hur issued his report on Thursday. It is here: Report on the Investigation. The most charitable description of the report is that it is a political hit job. It is a mealy-mouthed, disingenuous report that initially implies that some evidence supported a finding of intentional conduct by Joe Biden, only to conclude two hundred pages later that no such evidence exists.

But the worst part of the report was the gratuitous remarks that described Joe Biden as an “elderly” man with memory problems. I won’t repeat the slurs here because you have undoubtedly read them elsewhere. They are cruel and misleading.  What Hur failed to note is that Biden sat through two days of depositions as he was handling the international crisis of the terrorist attack by Hamas on October 7.

Joe Biden responded with a news conference described as “fiery” in which he defended himself and his memory. The news conference is here: President Biden Delivers Remarks on Special Counsel's Report | C-SPAN.org. Watch the conference. It rebuts the characterization of President Biden included by Hur. Most importantly, Biden had the humility and humanity to acknowledge that he made a mistake in not properly supervising his staff in transferring materials when he left the White House in 2017.

Here’s my advice: Forget about it and move on. This is dirty politics despicably played by dirty politicians expert in the dark arts of dirty politics.

Merrick Garland is to blame. He continues to appoint (or retain) Republican special prosecutors who always find a way to advance Trump's agenda. Garland is more concerned with the precious “reputation” of the Justice Department that he places above the interests of the American people. Garland again sabotaged the American people with his overly cautious, milquetoast approach to justice.

And now for some tough love. But first, a story. As a defense attorney for forty years, I can tell you the worst part of the job was sitting through the plaintiff’s opening statements. For hours on end, I had to sit and listen to distorted facts, lies, mischaracterizations, and innuendo. There was no chance to object or rebut during the plaintiff’s opening statement. And since the plaintiff goes first at trial, it felt bad. Really bad. First impressions matter and are difficult to overcome.

But then I had to get up and give the defendant’s opening statement. There was no time for handwringing or feeling bad about the lies and mischaracterizations. I had a job to do. I needed to maintain “professional distance” between what was being said about my client and my professional obligation to provide a vigorous defense.

That’s where we are today with the slurs about Joe Biden’s age and memory. Get over it. Get back to work. Maintain a professional distance. We have a job to do, and fretting about attacks on Biden isn’t going to make an iota of difference.

I received a stream of emails all day on Thursday. They started out with outrage about the oral argument in the Supreme Court but quickly turned to hand-wringing about the special counsel’s attacks on Joe Biden’s memory. I tried to be reassuring, but as the day wore on, I became more direct in my responses.

One reader wrote, “I am worried. Biden was the right president for the right time, but I wish he would step aside and let someone else represent us.” I responded, “That isn’t going to happen. You can be part of the problem, or you can be part of the solution.”

So, here comes the tough love: Fretting about the attacks on Joe Biden’s age is part of the problem. Let’s knock it off. It does no good to tell anyone that you “wish Biden would step aside.” I wish I had hair, but wishing won’t make it so. Such regretful wishes will only make others more anxious about an issue we can do nothing about.

As I said previously—and I mean this in the nicest way possible—“Knock it off.” Establish some professional distance, toughen up, and don’t let Republicans manipulate our emotions.

Hur’s attacks are garbage that will be forgotten next time Trump confuses one of his sexual assault victims with one of his many wives and mistresses. Or when he admits that January 6 was an insurrection. Read on!

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Trump admits that January 6 was an insurrection.

After the hearing in the Supreme Court, Trump made televised remarks commenting on what he described as a “beautiful hearing.” But he also discussed January 6, saying,

I think it was an insurrection caused by Nancy Pelosi.

So, Trump admits January 6 was an insurrection, disputing only who caused it. (Hint: It was Trump.) Trump previously blamed Nikki Haley but has now been reminded that Nancy Pelosi was Speaker of the House on January 6, so at least he got that right.

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Senate advances funding bill for Ukraine, Israel, and Taiwan.

After blocking the bill on Wednesday, Senate Republicans allowed the funding bill for Ukraine, Israel, and Taiwan (without border reform) to advance toward a vote on Thursday. It is still not clear whether Republicans will filibuster the bill on the final vote. See NBC News, Senate advances Ukraine and Israel aid after GOP blocked larger border bill.

Senate Republicans are divided over whether they should amend the bill to include immigration reform. No, that is not a sick joke. Republican Senator Mike Rounds explained the bizarre situation as follows:

Mike Rounds, R-S.D. . . . said Republicans discussed trying to add border amendments to the new deal, “but clearly on our side of the aisle there’s a lot of people that feel that the former president’s comments meant that he really didn’t want to see something like that at this time. And that’s held a huge amount of weight on our side.”

If the Senate doesn’t pass the bill by February 11, the Senators will head home for a ten-day recess.

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Help push Tom Suozzi over the line in New York’s 3rd congressional district

Tom Suozzi has five days left before the close of voting in New York’s 3rd congressional district—which is vacant due to the expulsion of George Santos. If you can help by texting, canvassing, phone banking, or donating, click this link: Suozzi for Congress.

The race will be close, but we have reason to be cautiously optimistic. Let’s help push Tom over the line to reclaim NY’s 3rd district.

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Republicans will make a second attempt at impeaching Secretary Mayorkas 

GOP Rep. Steve Scalise will return to the House on Friday, giving Republicans enough votes to impeach Secretary Mayorkas. See Federal Times, House may try again to impeach Homeland Security Secretary Mayorkas. But they must do so before the results of Tuesday’s special election in NY’s 3rd congressional district—with Tom Suozzi—are final.

If Tom Suozzi wins and is sworn in, the current “no” votes against impeaching Secretary Mayorkas will defeat impeachment. So, Republicans are racing to impeach Secretary Mayorkas before the results of NY 3rd’s special election are final.

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Putin dominates Tucker Carlson

Tucker Carlson’s interview with Vladimir Putin was a bust. Putin barely let Carlson speak, and spent most of his time in lengthy explanations of Russia’s history dating back to the 9th Century. Carlson spent most of the interview in perplexed silence. When he tried to interject a question, Putin scolded him for interrupting. See Washington Post, Putin, in rambling interview, barely lets Tucker Carlson get a word in. (Accessible to all.)

Notably, Putin lied about several major topics, claiming that Russian troops left Kyiv in 2022 as part of a “peace deal.” In fact, Ukraine’s troops repulsed the Russian invaders. And Putin claimed that WSJ reporter Evan Gershkovich was a spy for US intelligence services. Both went unchallenged by Carlson.

Putin attempted to persuade the US (through Carlson) to abandon Ukraine, using talking points that would be at home in GOP speeches from the House floor:

Don’t you have anything better to do? You have issues on the border. Issues with migration, issues with the national debt. More than $33 trillion. You have nothing better to do? So you should fight in Ukraine? Wouldn’t it be better to negotiate with Russia? Make an agreement?

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Concluding Thoughts.

We had a bit of a rough day. Tomorrow is a new day, and the media's attention span is (unfortunately and fortunately) about four hours, so we can reset the narrative on Friday. Biden’s campaign has been on the offensive and will continue to be so. Meanwhile, Trump will continue his missteps and suffer judicial setbacks in the coming weeks. (Today may have been his high-water mark.)

So, let’s tough it out for twenty-four hours and get ready to go on offense again. Be part of the solution, not part of the problem!

Talk to you tomorrow!