A resolution in plain sight?

September 28, 2023

         The most significant story on Wednesday arose from the dueling approaches of the Senate and the House regarding the potential government shutdown. Despite the continuing dysfunction in the House, a clear path emerged to a bipartisan solution—a conclusion that might seem counterintuitive at first glance. Hear me out!

          In a show of bipartisan realism, the Senate advanced legislation for a “continuing resolution” that would keep the government open on a “status quo” basis after the October 1 deadline. The Senate bill passed a procedural vote by a 77-19 margin. If the bill is passed on the Senate floor, it would provide funding for the government for six weeks and include funds for the defense of Ukraine. That is a sensible short-term resolution of the current budget stalemate.

          Speaker of the House Kevin McCarthy reportedly told the GOP caucus immediately after the Senate’s procedural vote that he would not allow the Senate bill to come to the House floor for a vote—undoubtedly out of fear that it would pass over the objection of the MAGA extremists in the GOP caucus. See Washington Post, Shutdown looks more likely, as House GOP leaders reject Senate plan. (This article is accessible to all.)

          McCarthy’s reluctance to bring the Senate bill to the House floor proves that McCarthy is a prisoner of a handful of MAGA extremists. That small clique controls the caucus through their control over McCarthy—against the wishes of the remainder of the GOP caucus. As Josh Marshall of Talking Points Memo put it:

I don’t think that we can repeat enough times that this isn’t another shutdown where Congress is fighting with the White House or the House with the Senate. The government is shutting down because the GOP speaker is fighting with about 25 GOP weirdos.

          When the government shuts down—and it will—the proximate cause will be an intra-caucus fight in the House between MAGA extremists and less extreme Republicans.

          Why, then, does that state of affairs suggest a path forward? If McCarthy refuses to bring the bipartisan Senate bill to the House floor, aren’t we doomed to a lengthy government shutdown? Not necessarily.

          The very reason that McCarthy won’t bring the Senate bill to the House floor—i.e., it might pass over the objection of MAGA extremists—suggests the way forward. It appears that the only impediment to a bipartisan resolution in both chambers of Congress is Kevin McCarthy’s concern about retaining his job as Speaker. If he can get beyond that concern, he can allow a vote on the Senate continuing resolution.

          The answer, of course, is for Democrats to assure McCarthy they will support him in a challenge to his Speakership if he allows floor votes on realistic bills that will pass in both chambers of Congress.

          Is it realistic to hope that a dozen (or so) Democrats would support McCarthy for Speaker? That question begs another: Is that a realistic hope compared to the alternative? As unpalatable as it might be for some Democrats to support McCarthy, it would be far worse to subject tens of millions of Americans to economic hardship caused by a shutdown.

          The path to an interim resolution is in plain sight and appears to be achievable. The only question is when McCarthy will call the bluff of the MAGA extremists who are holding his tenure as Speaker over his head like the Sword of Damocles. When that day comes, the MAGA extremists will lose their power over Kevin McCarthy, and the House will be able to vote on legislation—its core function.

          There are, of course, other ways for the budget crisis to end. McCarthy could lose his job as Speaker, leading us down an unknown path. The Senate might strike a deal on a continuing resolution that does not include funding for Ukraine, which would be contained in a separate bill. Or something else. But the most reasonable inference is that both chambers of Congress have enough votes for a bipartisan resolution—if only Kevin McCarthy will allow a vote.

Judicial Watch.

          Three stories involving the judiciary are worth noting on Wednesday.

1. Judge Chutkan denies motion for recusal.

          Judge Chutkan denied Trump's motion for recusal in the federal trial involving Trump's efforts to overturn the 2020 election. Judge Chutkan’s order is here:  Memorandum and Order | Criminal Action No. 23-257.

          Judge Chutkan’s order is so well-reasoned and written it is appeal proof. Trump tangled with the wrong judge. Even better, Trump and his co-conspirators are on a losing streak in the DC federal and Georgia state prosecutions. Their illogical, bad-faith arguments succeed in generating soundbites but do not pass muster as legal arguments.

2. The Trump family begins to realize the consequences of Justice Engoron’s order.

          As noted yesterday, New York Supreme Court Justice Engoron granted partial summary judgment in favor of Attorney General Letitia James in the lawsuit against the Trump Organization and its affiliates. The order granting partial summary judgment included a provision canceling the business certificates of dozens of LLCs and partnerships and ordering that the assets of those entities be put into receivership and sold.

          The cancellation and dissolution provision is breath-taking as applied to Trump's businesses. But what happens when the Trump family members place their personal residences in those business LLCs—presumably to obtain tax benefits not available through direct, private ownership of homes and apartments?

          Oops! Perhaps the Trump family was too clever by half. They chose to treat their personal residences as business assets of the Trump Organization. Now that the Trump businesses have been canceled and will be dissolved, what happens to those homes and apartments? That is the question that Trump's lawyers asked Justice Engoron on Tuesday. See Business Insider, Will the Trumps Lose Their Homes? NY Judge Is Cryptic at Tense Hearing.

          It is clear what happened: After the order was released on Tuesday, several Trump family members screamed at their lawyers, asking, “What about my home?!! Find out ASAP.” Justice Engoron was disinclined to respond to the urgent entreaties from the Trump lawyers, saying, “We can talk about that later.”  

          Here’s the thing: If you claim that your home is a business asset, it is liable for the debts of the business. You can’t have it both ways, claiming that it is “personal property” as soon as the home might be sold to answer for the business’s debts.

3. Judge Cannon continues to issue rulings that border on the incomprehensible.

          Kudos to Joyce Vance for calling attention to a brief “minute order” issued by Judge Aileen Cannon in the defense secrets trial in Florida. As explained by Vance, the prosecution requested a hearing to determine if lawyers representing defendants in that case who also represent witnesses have conflicting loyalties to those clients. In such circumstances, it is usual for the judge to require the parties represented by counsel who may be conflicted to attend a hearing—so they can hear the government’s argument about the possible conflicts of interest. Moreover, the judge usually appoints an independent lawyer to advise the parties with potentially conflicted counsel regarding the motion. See Joyce Vance in Civil Discourse, Judge Cannon Enters a Minute Order.

          Judge Cannon’s cryptic minute order does not require the parties to attend the hearing, and it denied the government’s request to appoint an independent counsel to advise the parties regarding the potential conflicts. As noted by Vance, Judge Cannon’s order is highly unusual. It represents either inexperience or a thumb on the scale in favor of Trump. Read Joyce Vance’s excellent explanation for more details. It may be time for special counsel Jack Smith to make another trip to the 11th Circuit—this time to ask for removal of Judge Cannon from the case.

The GOP debate: And the winner is . . . Gavin Newsom!

          The second GOP presidential debate had an unexpected winner: California Governor Gavin Newsom, who appeared on MSNBC’s post-debate coverage. In commenting on the performance of the GOP candidates, Newsom managed to work in a robust defense of President Biden while criticizing the GOP field as “the junior varsity or XFL.” [For non-sports fans, the “XFL” is a second-tier professional football league.]

          Newsom said that the GOP candidates could only complain about problems without identifying solutions while Biden had already enacted solutions! He also punctured the Republican rhetoric about high crime in California and New York by pointing out that the crime rate in Miami and Jacksonville, Florida is higher than in Los Angeles and San Francisco!

          Good job, Governor Newsom!

Reader comment of the day.

          Reader Jenny A. posted this in the Comments section:

Please vote early as soon as possible! Each early vote allows a candidate’s campaign and other organizations writing postcards, calling, or text banking to check that voter off their list.

          By voting early, you help “Get Out the Vote” organizations to focus on the subset of voters who still need prompting to get to the polls!

Opportunity for Reader engagement.

          Reader Nancy B. sent the following:

          Longtime subscribers to this newsletter are hosting an event in New York City on October 3rd for Rise, one of the most impactful youth GOTV groups in the country. Rise is dedicated to registering Gen Z voters AND getting them to the polls, and they have the data to prove their electoral success. They are gearing up for a herculean effort in 2024 in seven critical states (AZ, GA, WI, MI, PA, NV and NC). Donating to Rise is an extremely cost-efficient use of your funds as it costs Rise approximately $13 to get a young person to the polls while it typically costs a campaign more than ten times that amount. 

          The event on October 3 will feature Rise’s new CEO, Mary Pat Hector in conversation with MSNBC commentator and NYU professor Ruth Ben-Ghiat. The author of Strongmen, Professor Ben-Chiat is the premier expert on the kind of authoritarianism we are fighting against. Please click here if you would like to donate and hopefully attend. We guarantee you will leave the event both uplifted and more knowledgeable! 

Spread the word about Today’s Edition Newsletter and receive a “referral reward.”

          I mentioned earlier that I have hired one part-time staff person to help me respond to reader inquiries regarding subscriptions, missing newsletters, lapsed credit cards etc. She is doing a great job and is showing initiative by urging me to “step up” my efforts to expand newsletter circulation (so I can help promote the good work of others!). Today, I am launching a “referral rewards program,” below. Tomorrow, I will ask for reader input on where and how I should distribute the newsletter on other social media platforms (or not).

          So, as a person who is not comfortable promoting the newsletter, here is my effort to promote the newsletter:

          I am humbled and honored that so many of you find comfort and inspiration in this newsletter and forward it to your friends. Spreading the message of this newsletter encourages others to take action to save our democracy.  Let's keep at it!  As a “thank you” to readers who invite others to become Today's Edition subscribers, I've launched the Referral Rewards program. (You may have noticed that other Substack authors are offering this program as well.)

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To participate, navigate to Today's Edition on the Substack website and click the Leaderboard tab on my homepage.  The link below is your unique subscription link that you can use to invite friends to subscribe.  Thanks, and happy sharing!

Concluding Thoughts.

          I haven’t said much about the GOP debate because there is not much to say. It consisted of equal parts squabbling, bickering, condescension, and evasion—with a dash of “ick factor” from Mike Pence. None of the candidates took on Donald Trump's corruption, criminality, misogyny, and full-throated fascism.

          On the one hand, those omissions are deeply troubling. On the other, they highlight the electoral weakness of the GOP as a whole and Trump in particular. Trump's deficits are so bad that they dare not be mentioned. Trump is the only leading presidential candidate ever to seek office while indicted once—much less four times. Yet, the indictments were not mentioned. Nor was the civil verdict finding he committed sexual assault against E. Jean Carroll. Likewise for the ruling yesterday, which found that Trump's entire business was grounded in fraud. Relevant? You betcha! Mentioned? Nope!

          So, when the presidential aspirants are so ashamed of their main competitor that they cannot mention his deficits as a candidate, that bodes ill for that candidate’s electability in the general election. When Donald Trump is the nominee—or the last man standing in the GOP primary—Democrats should (and will) start non-stop, hard-hitting messaging that speaks directly to Trump's criminality, corruption, treason, and fascism. The time will come. When it does, the messaging will be devastating—as every GOP hopeful on the stage told us tonight by their silence.

          Talk to you tomorrow!