Biden shows the way forward.

August 31, 2022

           President Biden continued his newly aggressive tone in a speech in Pennsylvania on Tuesday. He condemned GOP threats of violence intended to dissuade the DOJ from indicting Trump and the harassment of FBI agents who assisted in the search at Mar-a-Lago. Biden said,

The idea you turn on a television and see senior senators and congressmen saying, ‘If such and such happens, there’ll be blood in the street’. Where the hell are we?”

Now it’s sickening to see the new attacks on the FBI. Threatening the lives of law enforcement agents and their families for simply carrying out the law and doing their job. I’m opposed to defunding the police. I’m also opposed to defunding the FBI.

You can’t be pro-law enforcement and pro-insurrection. You can’t be a party of law and order and call the people who attacked the police on Jan. 6 patriots. . . . You’re either on the side of the mob, or the side of the police.

[The full text and video are here: President Biden Delivers Remarks | C-SPAN.org

          Like his earlier remarks attacking the “semi-fascism” of MAGA Republicans, Biden’s remarks today should rally Democrats looking to control the narrative and seize the high ground. Biden’s aggressiveness will force Republicans to defend themselves and respond to his attacks—at the very moment their presumptive leader is experiencing an online meltdown.

          Although it is wrong to give unnecessary coverage to Trump’s comments on his vanity social media platform (Truth Social), Trump is apparently suffering an emotional break online. Yesterday, Trump demanded that one of the following events happen immediately: Declare Trump the “rightful winner” entitled to occupy the Oval Office or “declare the 2020 election irreparably compromised and have a new election immediately!”

          Trump’s unhinged demands suggest he has lost contact with reality. As Jonathan Last of The Bulwark wrote,

If Trump is serious, then he is cognitively impaired. There is no way to accomplish the “remedies” he proposes. . . . So either Trump does not have the baseline intelligence to understand how the government and the U.S. Constitution function—or he has suffered from some mental decline which has rendered him incapable of basic deductive reasoning.

          In the eight hours since Jonathan Last published his essay, Trump has released (or republished) a barrage of nearly incoherent statements on Truth Social, including cryptic messages from “Q”—the alleged leader of QAnon. See NBC News, Trump shares barrage of QAnon content and other conspiracy theories on his social media platform. Trump’s social media platform has become such a cesspool of violence and misinformation that Google refuses to allow the Truth Social app to be included in its app store (“Google Play”). See HuffPost, Trump’s Truth Social App Barred From Google Play Over Content Moderation Failure.

          There is, of course, another explanation for Trump’s increasing incoherence on Truth Social—he may be trying to distract from the serious legal jeopardy he faces for theft of defense secrets. If that is his strategy, we should expect a torrent of ravings as Trump scrambles to escape the sea of troubles that (finally) threatens to swamp the man who promised to “drain the swamp.”

Professor Tribe’s commentary on Dobbs.

          Two months have passed since Dobbs eliminated the constitutional right of reproductive liberty for women. In the weeks after the ruling, feelings were raw and emotions were high. They remain so today as GOP-controlled states convert a former constitutional right into a felony. Alito’s opinion in Dobbs drew immediate derision and scorn, as did the concurring opinions that sought to deny the plain meaning and legal import of Alito’s words. I note here that several readers criticized me for being “emotional” or “strident” in my criticism of the decision. So, for a more dispassionate and scholarly analysis of Dobbs, I recommend a brilliant essay by Professor Laurence Tribe, Deconstructing Dobbs, in The New York Review of Books.

          Although the essay is behind a paywall, you can gain access to “one free article” in exchange for your email address. I accepted the bargain.

          Professor Tribe’s essay is a devastating deconstruction of the nonsense written by the reactionary majority in their quest to impose theocratic rule over a secular issue. The sub-title for the article lays out Professor Tribe’s thesis:

          Whether or not one sees the Supreme Court’s Dobbs decision as barely concealed theocracy, it fails to provide any coherent legal analysis of why the right to abortion is not protected by the Fourteenth Amendment.

          Strong words, but Professor Tribe proves his thesis by referencing precedent, the Constitution, and American history. If you can gain access to the essay, I highly recommend it. For lawyers who relied on Tribe’s treatise in law school— American Constitutional Law—you will be transported back to the time when Professor Tribe’s commentary was the final word on constitutional scholarship.

          The essay covers much ground, and I cannot do it justice in this newsletter. But one of the core arguments is that the reactionary majority has arbitrarily denied reproductive freedom protection under the Liberty Clause of the Fourteenth Amendment even as they protect other rights from state intrusion by relying on the same clause:

          Explaining why the Liberty Clause should prioritize, say, the freedom of speech or of religion, or the right to bear arms for self-defense . . . over the no less basic freedom to determine what is to become of one’s own body would be no mean task. After all, those rights are protected from infringement by the states not because the text of the Constitution requires it. The Bill of Rights restricts only the federal government. The states cannot infringe those rights because the Supreme Court has said they are fundamental rights whose infringement, like the right to abortion before Dobbs, would violate the Fourteenth Amendment’s Liberty Clause.

          I have heard from many readers that the elimination of reproductive liberty is so painful they find it difficult to read or hear about the fallout from Dobbs. Those feelings are entirely understandable and justified. But if you are at a place where you are ready to understand the intellectual bankruptcy of Alito’s opinion in Dobbs, there is no better place to start than Professor Tribe’s article.

More on Tony Ornato, former Secret Service agent.

          Yesterday, I implied that there might be more to Tony Ornato’s sudden resignation from the Secret Service than meets the eye. In Talking Points Memo, Nicole Lafond reminds us that Tony Ornato was part of the White House effort to move Mike Pence out of the Capitol when the assault began. See TPM, Reminder: Ornato Reportedly Played A Role In Pushing Pence To Leave Capitol On Jan 6.

          If Ornato and others succeeded in removing Pence from the Capitol, the electoral count would have been delayed—which was the strategic goal of the assault on the Capitol. Trump wanted time to send the election back to the state legislatures for a “do-over” selection of electoral delegates. Ornato was pushing for Pence to leave the Capitol—which would have given Trump the temporary victory he sought by inciting violence. If Ornato was part of the plot to delay the electoral count, there is good reason for him to beat a hasty retreat from the USSS.

Greg Sargent, not Max Boot.

          Yesterday, I cited a WaPo op-ed entitled, Lindsey Graham’s vile ‘riots’ threat over a Mar-a-Lago prosecution gives away Trump’s game. I incorrectly said that the author was Max Boot. In fact, the author was Greg Sargent. How did I mix up the two authors? Readers frequently send me links to stories; yesterday, I received a suggestion from one reader to discuss a Max Boot op-ed in WaPo, Garland must hold Trump to account for the sake of U.S. democracy, and another suggestion from a reader regarding the Greg Sargent op-ed in WaPo. I read both op-eds and mixed up the authors in the newsletter. My apologies.

The DOJ’s response to Trump motion for appointment of special counsel.

          In some respects, the DOJ’s response to Trump’s motion for the appointment of a special master was as expected: The motion is too late, the DOJ has already completed its review, and the appointment of a special master is unnecessary.

          But a declaration by Jay Bratt, head of DOJ Counterintelligence, included some damning assertions, including the following:

          The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.

          That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the ‘diligent search’ that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter.

          To prove the point that the Trump team could not have mistakenly failed to locate top secret documents, the DOJ included a photo of some of the cover pages of the documents recovered from Trump’s personal office. The photo is at the last page of this appendix. The DOJ’s filing also states that three classified documents were recovered from a “desk drawer”—presumably Trump’s desk.

          None of this looks good for Trump. More tomorrow.

Concluding Thoughts.

          Who would have thought that in the dog days of August, the fortunes of Democrats and Republicans would reverse and cross? We are still sixty days out from the midterms so anything can happen—which is the point! Democrats have spent the last eight months being told (and believing) that the outcome of the midterms is carved in stone. It is not. We are experiencing a moment of extreme fluidity and instability—which means that fortune favors the bold. We have nothing to lose and everything to gain by acting boldly and speaking plainly. The moment deserves nothing less. Joe Biden is showing the way.

          Talk to you tomorrow!