Continuing the conversation about the media narrative.

December 19, 2023

We should continue our conversation about shaping the media narrative in light of an outrageous op-ed in the NYTimes on Monday that argued Trump is merely a misunderstood “moderate” who innocently uses “incendiary" language because of his “combative” personality. But let’s look first at multiple legal developments that provide positive signals to those who hope that Trump and his co-conspirators will be convicted for attempting to overturn the 2020 election.

Convicting Trump will help defend the Constitution and vindicate the rule of law. It will not—standing alone—prevent him from being re-elected. We should follow the criminal (and civil) proceedings against Trump with interest. But they are not a substitute for rallying existing voters and registering new voters to defeat Trump in a landslide.

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The 11th Circuit Court of Appeals denies Mark Meadows's request to remove Georgia's criminal case to federal court.

What happened.

Quick background: In August, Mark Meadows attempted to “remove” his Georgia state criminal case to federal court. Meadows invoked a federal statute that allows removal of state criminal prosecutions—to protect federal workers who are charged with state crimes for performing their federal duties. In September, a federal district judge denied Meadows’ motion after an evidentiary hearing. The district judge ruled the Meadows failed to prove he was acting in pursuit of his federal duties in seeking to overturn the 2020 election. Meadows then appealed to the 11th Circuit Court of Appeals.

Today’s developments. The 11th Circuit Court of Appeals upheld the lower court decision denying Meadows’ motion to remove the case to federal court. The 11th Circuit’s opinion is here: Georgia v. Meadows | No. 23-12958 | 2023-12-18. Accordingly, unless the Supreme Court reverses the 11th Circuit’s ruling, Meadows will be tried in state court—along with Trump.

Why it matters. The decision of the 11th Circuit is important on several levels.

First, the opinion firmly rejected the notion that the President’s Chief of Staff had any legitimate role in interfering in the outcome of an election. That same logic applies to Donald Trump. Although Trump did not attempt to remove the Georgia criminal proceeding to federal court, the removal arguments rejected by the 11th Circuit closely track Trump's presidential immunity claims.

The 11th Circuit concluded that the removal statute does not apply to a former federal officer, but even if it did,

“At bottom, whatever the chief of staff’s role with respect to state election administration, that role does not include altering valid election results in favor of a particular candidate.”

Second, the opinion was written by Chief Judge William Pryor, who has been described as “a conservative stalwart and probably the single biggest circuit court ally to Supreme Court Justice Thomas there is.” To the extent that we are looking for hints about the likely outcome in the Supreme Court, Judge Pryor’s strong rejection of Meadows’ argument is about as good as it gets—both on the removal arguments and Trump's presidential immunity defense.

Bottom line: The 11th Circuit opinion increases the likelihood that Meadows will stand trial in Fulton County, Georgia on the RICO conspiracy indictment secured by District Attorney Fani Willis. It also suggests that the D.C. Circuit—and Supreme Court—will reject Trump's presidential immunity defense on similar grounds. That is very good news for those who hope that Donald Trump will finally be tried in court before a jury of his peers. That is all we can ask for!

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D.C. Circuit Court of Appeals schedules oral argument on Trump's presidential immunity defense.

What happened.

Quick background. In October, Trump moved to dismiss the D.C. election interference case pending before Judge Chutkan on grounds of presidential immunity. On December 1, 2023, Judge Chutkan denied Trump's motion to dismiss, and Trump appealed to the D.C. Circuit. Jack Smith moved for an expedited hearing in the D.C. Circuit and petitioned the Supreme Court to grant immediate review (thereby skipping over the D.C. Circuit). The D.C. Circuit granted Smith’s request for an expedited hearing and the Supreme Court ordered expedited briefing on whether it should grant review before final judgment.

Today’s development.  The D.C. Circuit set oral argument on Trump's presidential immunity defense for January 9, 2024! The order is here: US v. Trump | No. 23-3228 | 2023-12-18. The D.C. Circuit set the expedited hearing “on its own motion,” meaning that the appeals court did not wait for anyone to ask it to set an expedited hearing. The development is a strong signal that the D.C. Circuit intends to dispose of the presidential immunity defense post haste—an outcome opposed by Trump.

Where do these developments leave us?

After the order by the D.C. Circuit, here is the daunting series of deadlines facing Trump over the next three weeks (courtesy of Lisa Rubin):

• 12/20/23 – Trump must file opposition in the Supreme Court on Smith's motion to expedite review.

• 12/23/23 – Trump must file opening brief in the D.C. Circuit on presidential immunity defense.

• 12/29/23 – Jack Smith must file opposition brief in D.C. Circuit.

• 01/02/24 – Trump must file reply brief in D.C. Circuit.

• 01/09/24 – Oral argument in D.C. Circuit on presidential immunity (unless Supreme Court grants immediate review).

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Judge Engoron denies Trump's latest motion to end NY civil fraud trial.

What happened. Trump filed a motion—for the fifth time—to end the NY civil trial against him for fraud. He did so by way of a motion for a “directed verdict”—a procedural device that alleges Trump is entitled to a judgment in his favor as a matter of law. A motion for directed verdict is normally filed once—at the close of the plaintiff’s case. By filing five motions for directed verdict, Trump is engaging in abusive litigation tactics. Judge Engoron denied Trump's motion in a withering opinion.

What Judge Engoron said, and why it matters. In his order denying Trump's fifth motion for a directed verdict, Judge Engoron re-affirmed his prior view of the case and rejected the testimony of the expert witnesses offered by Trump in his defense. Engoron wrote,

“Valuations . . . can be based on different criteria analyzed in different ways. But a lie is still a lie. Valuing occupied residences as if vacant, valuing restricted land as if unrestricted, valuing an apartment as if it were triple its actual size . . . are not subjective differences of opinion, they are misstatements at best and fraud at worst.

"Bartov is a tenured professor, but all that his testimony proves is that for a million or so dollars, some experts will say whatever you want them to say,"

It is clear (again) that Trump will lose the civil fraud trial. The only question is the amount of damages to be awarded (A.G. Letitia James is asking for $250 million, at least) and the restrictions to be placed on Trump's ability to operate his businesses in New York. The civil fraud trial will likely strip Trump of his real estate business in New York—pending appeal. It is another liability that Trump will face going into the 2024 presidential primary.

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New York Times publishes op-ed claiming that Donald Trump's popularity is due to fact that he is a moderate.

What happened. On Monday, the NYTimes published a guest editorial by Matthew Schmitz entitled, “The Secret of Trump’s Appeal Isn’t Authoritarianism.” (The article is behind a paywall and I am not wasting one of my gift subscriptions to make it available.)

Mr. Schmitz's thesis is “Mr. Trump enjoys enduring support because he is perceived by many voters — often with good reason — as a pragmatic if unpredictable kind of moderate.”

Schmitz then attempts to normalize Trump's hate speech, racism, calls for violence, and erratic behavior as something we should expect from a lovable old uncle who doesn’t know when to stop saying stupid things.

Why it matters.  Democrats rightfully feel that the media is sleepwalking into a fascist regime by normalizing Trump with false equivalencies, reckless “both siderisms,” and inane “whataboutisms.” They do so in the pursuit of alleged “fairness” that obscures and denies the truth. While the media rises to the challenge on occasion, they relinquish any progress—and credibility—they achieve by pandering to the likes of Matthew Schmitz.

As I was preparing to explain why the NYTimes is acting recklessly by publishing Schmitz’s laundering of Trump's Nazi rhetoric, a reader sent me a piece by Jonathan V. Last in The Bulwark that does a better job than I ever could. See Jonathan V. Last, The Bulwark, The New York Times Is Part of the Effing Problem.

I urge you to read Last’s essay, start to finish. But if you don’t, the following gives the gist of his criticism of the Times:

The piece is filled with both euphemism and the passive voice, all in an attempt to obscure reality from readers and present a sympathetic case for Trump.

Look at this passage:

“To be sure, Mr. Trump’s wild rhetoric, indifference to protocol, and willingness to challenge expertise have been profoundly unsettling to people of both political parties. His term in office was frequently chaotic, and the chaos seemed to culminate in the Capitol riot of Jan. 6, 2021.”

This might be the most misleading passage ever published in the paper of record.

It was not Trump’s “indifference to protocol” which was “unsettling” to people. And the “chaos” of Trump’s term did not “seem” to culminate in a “riot” at the U.S. Capitol.

If you came down from Mars and simply read today’s NYT op-ed, you would have absolutely no idea that [January 6 was a violent insurrection]. Instead, you’d think that Trump was some kind of a ne’er-do-well or scamp. [¶]

But you gotta have both sides? I guess?

The Times does this a lot—running cover for authoritarians by publishing outrageously misleading “opinion” pieces in the name of airing “both sides” of the debate.

I won’t catalog the many ways that Schmitz attempts to excuse, minimize, and normalize Trump's hate speech—Jonathan Last does that ably in his article.

So, should you cancel your subscription to the NYTimes? As I suggested yesterday, the better strategy is to write to the Times to let the editors know what you think about their decision to normalize Trump immediately after he invoked Hitler’s “poisoning the blood of our nation” speech.

Many readers have asked how they can reach the journalists and editors at leading newspapers. Please see the helpful links posted in the Comment section by readers in response to yesterday’s newsletter: Comments - Help shape the narrative! - by Robert B. Hubbell (substack.com).

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And while you are at it, let the University of New Hampshire know how you feel about the university hosting Trump's hate speech.

What happened. In widely reported remarks, Trump blamed immigrants for “poisoning the blood” of our nation during a speech in Durham, New Hampshire. What was not reported (in most outlets) was that the speech actually took place on the campus of the University of New Hampshire in Whittemore Center Arena. See Newsweek, Donald Trump Rally Video Appears to Show Hundreds of Empty Seats. The Newsweek article includes a photo of Trump speaking, with the following credit:

“Former President Donald Trump speaks during a campaign rally at the University of New Hampshire's Whittemore Center Arena in Durham, New Hampshire, on December 16, 2023.”

Hmm . . . let’s see. A public university hosts a presidential candidate who has been making racist, neo-Nazi, dictatorial threats and the university president thinks that is an appropriate use of state taxpayer dollars because . . . ??

A reader suggested that residents of New Hampshire might want to express their views to the University president and chief of staff about the propriety of giving Trump a presence to unleash hate speech on the campus.

And to be clear, Trump may have the right—like every citizen—to rent university facilities. But that doesn’t mean the president of the University and his senior staff must remain silent in the face of a speech invoking Hitler’s vile racial purity philosophy.

Per the reader, the relevant email addresses are:

• James Dean Jr., President, James.Dean@unh.edu

• Megan Davis, Chief of Staff, Megan.davis@unh.edu

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Opportunity for reader engagement.

I received this note from Sarah O. of PostCardsToVoters:

PostcardsToVoters.org launched postcards for Democrat Tom Keen for Florida State House (HD35) to get out the vote for his Special Election on January 16th. Tom Keen is a terrific candidate, and votes in the special election will help next fall when abortion is on the ballot in Florida.

Check out PostCardsToVoters Linktr.ee (https://linktr.ee/postcardstovoters) to see how to joinPostcards To Voters. If you have already joined, remember that Abby the Bot is not texting but you can get addresses via the PTV linktr.ee). Thank you!  

Also, Simon Rosenberg invites people to a virtual pep rally for HD35 this Wednesday at 6:00 p.m. Eastern. Register here. Meeting Registration - Zoom 

Also, my former law partner, Jamie Levitt, was interviewed by Dahlia Lithwick on her podcast, Amicus With Dahlia Lithwick, Texas Abortion Laws’ Cruel Outcomes. Jamie Levitt is representing the lead plaintiffs in the case of Zurawski v. State of Texas, which is challenging Texas’s restrictions on reproductive liberty. The podcast is a compelling listen about an important case. Check it out!

Concluding Thoughts.

Readers who wrote to journalists and newspapers yesterday are getting responses today. Those responses are not phrased as, “Yes, you are right,” but as “Here is why we said what we said.” That is progress! If journalists and editors are taking time to respond to reader input, they are being forced to listen—and may think more deeply before making the same mistakes in the future.

Changing the narrative is important—and we should do our best to be messengers for Joe Biden’s successes. But in the end, we should trust that voters are smarter than Republicans or journalists believe they are. Remember 2022, when the midterms were going to be decided by the price of gasoline? It didn’t happen. And despite that kinetic feedback from actual elections, the media (and pundits) are again promoting the myth that Joe Biden will lose because of the price of gasoline.

Old prejudices die hard, and it requires real effort to look behind “conventional wisdom” to see the truth. That is why we must help shape the narrative—up to a point. There is only so much time available for the 2024 election, and we should each direct our efforts to the highest and best use of our talents. For some, it is writing letters to the editor. For others, it is canvassing, texting, donating, writing postcards or sitting at a table at a local mall to register voters. The important point is that each of us must do something.

We know, of course, that not everyone will contribute to the effort. But, as Joe Biden said in his inaugural speech, “In each of these moments, enough of us have come together to carry all of us forward.” There are enough of us working toward success in 2024 to carry all of us forward. Be confident of that fact—but do not give in to complacency!

Talk to you tomorrow!