Compared to what?

July 12, 2022

          At a White House ceremony marking the enactment of the Safer Communities Act, President Biden’s remarks were interrupted by the father of a victim of the Parkland school massacre. As Biden was saying that passage of the bipartisan bill proved “that despite the naysayers, we can make meaningful progress on dealing with gun violence,” Manuel Oliver stood and said,

          We have to do more than that! . . . We have to open an office in the White House.  I’ve been trying to tell you this for years.

          Biden alternately told Oliver to “Sit down,” and “Let him talk.” Biden then transitioned to a statement that seemed to anticipate Oliver’s comments, saying, “This legislation is real progress, but more has to be done.”

          The protest by Oliver is another example of the frustrating position in which Biden finds himself. The old saying, “Can’t win for losing” comes to mind. While Biden and the White House are not blameless in their responses to a series of crises, the truth is that Biden’s ability to respond to those crises has been hampered by the weak hand voters dealt to Biden in 2020. With a notional majority in the Senate that is really a 48-52 minority and a slim majority in the House, Biden has passed more legislation in his first two years than many presidents pass in eight.

          And yet, the fight to pass legislation has been bruising and exhausting. Remember the Build Back Better bill ultimately defeated by Manchin and Sinema? Schumer is still attempting to get Manchin and Sinema to support passage of a skeletal version of the bill before the August recess. See The Hill, Schumer making a last-ditch bid to pass reconciliation bill this summer. Oh, perfect! Just what Democrats need—another reminder of the nine months of bad-faith negotiations by Manchin and Sinema. But hope springs eternal; perhaps this time will be different.

          There is little that Biden can do to address restrictive state-level anti-abortion laws post-Dobbs, but the perception is that he has acted reluctantly and cautiously as he announced incremental and symbolic measures. Some commentators praise that approach because Democrats are not of a single mind on abortion. On Monday, Biden took the most aggressive action to date, threatening to cut off Medicare and Medicaid if hospitals refuse life-saving medical treatment to pregnant women. See NBC News, Roe v. Wade: HHS says doctors must provide abortions in emergencies.

          While flexing federal muscle to force emergency treatment to saf the life of the woman is a welcome development, emergency room physicians may be faced with an impossible choice: Provide emergency abortions to save the life of the mother and be charged with a felony or refuse such care and risk losing funding for their hospital. While Biden’s bold move deserves praise, the most likely outcome is protracted litigation that will land on the docket of the Supreme Court.

          Add to the above list inflation, gas prices, and a series of anti-democratic decisions by the Court and it all adds up to a doomsday scenario—or so the pundits tell us. See The Hill, Doomsday political scenario takes shape for Democrats. The problem with much political punditry is that it focuses on the problems faced by one party or candidate to conclude that the party or candidate is in deep trouble. Such analyses usually fall short because they fail to ask the most important question about the “parade of horribles”: “Compared to what?”

          The answer, of course, is “Compared to a twice impeached, coup-plotting, malignant narcissist who is singularly responsible for making abortion illegal in America and whose only goal in life is to monetize everything he touches.” A newly released poll asked voters to compare two candidates for president in 2024: The woe-laden Joe Biden and the above-described Donald Trump. The poll showed that in a head-to-head contest in 2024, Biden beats Trump by about 3% despite all of the baggage Biden is carrying now. See New York Times / Sienna College Poll.pdf.

          Before discussing this poll any further, let’s get this out of the way: No one should take any comfort from this poll. One poll is meaningless for predicting the outcome of an election, especially this far out. But the poll demonstrates that if we fixate only on our troubles to the exclusion of the rest of the universe, it is easy to convince ourselves we will lose. Let’s not fall into that trap.

          Yes, Joe Biden and Democrats face enormous challenges; Republicans face even more significant challenges. Our goal is to continue fighting with every fiber of our being and ignore pundits who focus on half the story.

          In fairness to The Hill’s reporting in the article linked above, the story did note that Biden outpolled Trump by 3% in a head-to-head match—but it did so in the 33rd paragraph of a 34-paragraph story. There are plenty of ways to skew the news to support a misleading headline; burying highly relevant information in the penultimate paragraph of a lengthy article is a time-dishonored journalistic trick. All the more reason to focus on what we can control and ignore misleading headlines.

More on Steve Bannon.

          At a pre-trial conference on Monday, the federal judge presiding over Bannon’s upcoming trial disallowed virtually every defense Bannon sought to raise to the charge of contempt of Congress. See Politico, Judge shreds Bannon defenses ahead of contempt trial. Bannon will not be permitted to rely on executive privilege to excuse his total noncompliance with the congressional subpoena. The judge so eviscerated the defenses Bannon hoped to raise that his attorney commented, “What’s the point in going to trial here if there are no defenses?” The judge responded, “Agreed.”

          The only defense Bannon will be allowed to raise is that he misunderstood the date he was required to respond to the subpoena—a heavy lift given his out-of-court statements that he would turn the prosecution into the “misdemeanor from hell.”

          A reader who is a retired lawyer and respected commentator reminded me today that Bannon needs only find one juror who will refuse to follow the law and vote to acquit. Good reminder. Let’s not get ahead of ourselves; let this play out.

          On Monday evening, Rachel Maddow described the Bannon developments as a sideshow. I disagree. Democrats have watched with disgust and a growing sense of outrage as Trump’s surrogates have evaded justice, largely through pardons. Seeing at least one member of Trump’s inner circle go to prison for flouting the law would be a first step in re-establishing the rule of law. That would be no small development. Indeed, it would begin to restore the trust of Americans that justice will prevail in the end.

This is why anti-abortion advocates will eventually lose—everywhere.

          A group of Texas legislators known as the Texas Freedom Caucus has sent a letter to the international law firm of Sidley Austin LLP informing the firm it will suffer “consequences” if it pays travel expenses for Texas employees seeking abortions. See Talking Points Memo, Texas GOPers Threaten Law Firm For Funding Employees’ Abortion Travel. The Freedom Caucus sent a “cc” of the letter to “All attorneys at Sidley Austin”—which is about 2,000 members of the bar.

          The Texas Freedom Caucus said that Sidley Austin is “exposing itself and each of its partners to felony criminal prosecution and disbarment,” The Freedom Caucus went on to say that it would introduce legislation to

criminalize any Texas company’s reimbursement of “elective abortions” or “abortion-related expenses — regardless of where the abortion occurs, and regardless of the law in the jurisdiction where the abortion occurs.”

It will also require the State Bar of Texas to disbar any lawyer who violates the state’s ban on abortion.

          Let’s reflect on those statements. First, any female attorney in Texas who has an abortion will be disbarred (presumably irrespective of the location of the abortion). Second, Texas plans to criminalize abortions performed in other states if a Texas company pays travel-related expenses for an employee obtaining an abortion.

          Such a bill would be grotesque and repugnant to the liberties guaranteed in the Fifth and Fourteenth Amendments. It would turn Texas into a roving criminal prosecutor policing the actions of non-Texans for actions taking place outside of Texas. It would disbar women for a decision that has nothing to do with their fitness to practice law. It would effectively convert female lawyers in Texas into second-class citizens beholden to the Texas State Bar.

          Sidley Austin is a global law firm with immense talent and deep political connections. But Sidley is not alone in Texas. Other international law firms with Texas offices that have confirmed they will offer such benefits include Mayer Brown, Morgan Lewis, Gibson Dunn, Kirkland & Ellis, Morrison & Foerster, Orrick, McDermott Will, Akin Gump, Quinn Emmanuel, Dorsey & Whitney, Vinson & Elkins, among others. See Above the Law, Which Biglaw Firms Will Cover Travel Expenses For Employees Who Can No Longer Access Abortion Care?

          If the Texas Freedom Caucus intends to make felons out of every lawyer at Sidley Austin and disbar their Texas partners en mass, it will need to do the same for tens of thousands of partners at the above-mentioned law firms. The elite law firms will shut down in Texas and global businesses in the state will lose access to the top-flight representation they need. This is especially true in light of the threat by the Freedom Caucus to enact an SB8 analog that will allow any Texas citizen to sue a lawyer who reimburses travel expenses to employees seeking abortions.

          The Texas Freedom Caucus has no idea about the size of the fight it has just started. It will retreat with its tail between its legs when it realizes the profound stupidity of its threat. But the fact that it felt emboldened to make the threat is why anti-abortion extremists will ultimately lose their battle completely. Of course, the quickest way for global law firms with Texas offices to neutralize this threat is to ensure the election of Beto O’Rourke as governor, who can then veto the legislation.

          Having won the right to regulate abortion, radical religious conservatives have turned it into a weapon to imprison and persecute law-abiding citizens. Americans don’t like being told what to do by the state, especially in private matters. The Texas Freedom Caucus will learn that lesson the hard way. And in that process, the people will reclaim the right to reproductive freedom. It is only a matter of time.

Concluding Thoughts.

          I should note that in the Times / Sienna poll linked above, Biden is favored to beat Trump, but Democrats prefer “someone other than Biden” to be the 2024 nominee by a wide margin. Of course, the way the question is phrased also suffers from the “Compared to what” deficit. It’s easy to select “a nominee to be named at a future date” over “Joe Biden.” As with the Biden / Trump question, I wouldn’t over-interpret the Democratic nominee question beyond saying, “Democrats need to talk amongst themselves, soon.”

          What I take away from the poll—and the dozens of other contradictory stories filling the media—is that there is a tremendous amount of “noise” in the system, making it challenging to pick out the “signal.” But as with most chaotic environments, if someone says, “Follow me, I have a plan,” that person can have an outsized effect in bringing order to chaos. That should be our role in the next 120 days. Everyone’s anxious, confused, and searching for stability. The situation is filled with opportunity and ripe for leadership. That should be where you come in. In whatever way you can, be the signal pointing to a more stable, rational, and tolerant America.

          Listen to the January 6th hearing on Tuesday, July 12 at 1:00 PM Eastern, 10:00 AM Pacific at this link: Select Committee to Investigate the January 6th Attack on the United States Capitol.

          Talk to you tomorrow!