Contumacy as the GOP’s business model.

September 6, 2023

          “Contumacy” is an archaic word used mainly in legal settings. It is defined as the “stubborn refusal to obey or comply with authority, especially a court order.” There are few occasions when “contumacious” is the appropriate adjective to describe an actor’s conduct, but it perfectly describes the conduct of both the Alabama legislature and defendant Donald Trump.

          As explained below, the Alabama legislature and Donald Trump have flouted the rule of law by “stubbornly refusing to obey” orders issued by federal judges, for which they should be rebuked and punished. But there is an uncomfortable truth (for them) lurking beneath their contumacious conduct: They are frightened. They see the day of reckoning approaching—which they fear more than the wrath of angry judges armed with judicial sanctions.

          In their respective efforts to suppress equal voting rights for Black Americans and avoid a lengthy prison sentence, the Alabama legislature and Trump have concluded that their best path forward is to flat-out disobey the law—damn the consequences! That is contumacy: raw, unbounded disobedience to the laws that are the foundation of civil society. Contumacy has become the business model for the GOP as it fights a rear-guard action to hang onto power it can longer legitimately claim in a representative democracy. It is a sign of weakness and desperation for the GOP. And, counter-intuitively, it is a sign of hope for Democrats that the day of reckoning for the minority ruling party is fast approaching. Let’s take a closer look.

Alabama redistricting proposal is (again) declared illegal.

          In 2022, the US Supreme Court upheld a lower court ruling that the Alabama congressional districts violated Section 2 of the Voting Rights Act. The Court agreed that the Alabama districts were the product of racial gerrymandering designed to deprive Black voters in Alabama of a second “opportunity” district “in which Black voters either comprise a voting-age majority or something quite close to it.” See the US Supreme Court’s opinion in Allen v. Milligan (10/04/22). The Court ordered the Alabama legislature to redraw the congressional district maps in a way that created a second opportunity district.

          The Alabama legislature drew new maps that again failed to create a second opportunity district as ordered by the Supreme Court. Voting rights advocates filed another suit against the Alabama legislature. On Tuesday, a three-judge panel rebuked the Alabama legislature for its contumacy and ordered a special master to create congressional districts that complied with the Supreme Court’s ruling in Allen v. Milligan. The district court’s order is here: Singleton v Allen | Injunction, Opinion, and Order.

          The three-judge panel was unsparing in its criticism of the Alabama legislature’s contumacy:

We have now said twice that this Voting Rights Act case is not close. And we are deeply troubled that the State enacted a map that the State readily admits does not provide the remedy we said federal law requires.

We are disturbed by the evidence that the State delayed remedial proceedings but ultimately did not even nurture the ambition to provide the required remedy. And we are struck by the extraordinary circumstance we face.

We are not aware of any other case in which a state legislature — faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district — responded with a plan that the state concedes does not provide that district.

          As explained by Mark Joseph Stern in Slate, the Court also criticized Alabama for attempting to create a situation in which its serial contumacy will be rewarded by the permanent denial of a second opportunity district for Black voters. See Mark Joseph Stern in Slate, Alabama is learning the dangers of defying the Supreme Court.

          As explained by Stern:

Alabama Republicans, however, treated the Supreme Court’s ruling as a mere suggestion. After a pointless delay, the Legislature enacted a map that contained the same flaws as the old one. . . . Alabama’s chief argument at this stage is that every time the Legislature redraws a map, courts must throw out their prior analysis and restart the case afresh.

Moreover, according to the state, courts must permit elections under the challenged plan while mulling each redrawn map. And if a court strikes down a new map, it must put its ruling on hold for any upcoming races. It must also wait for the Legislature to draw a substitute map before imposing its own, even if the Legislature drags its feet in a bid to run out the clock to the next election.

The court found this position not just unpersuasive, but unconstitutional. . . . Alabama seeks to create “an endless paradox that only it can break, thereby depriving plaintiffs of the ability to effectively challenge and the courts of the ability to remedy.” States cannot transform voting rights litigation into an “infinity loop” that only they may stop.

          Alabama plans to appeal the ruling of the three-judge panel directly to the Supreme Court. Let’s hope that the Supreme Court summarily rejects Alabama’s petition for review. Otherwise, the Court will be rewarding Alabama’s bad-faith refusal to abide by a lawful order of the US Supreme Court issued last October.

Jack Smith may have filed a motion asking Judge Chutkan to restrain Donald Trump's social media commentary

          During Donald Trump's arraignment in the federal case relating to the January 6th insurrection, a federal magistrate explicitly warned Trump to refrain from intimidating witnesses or spoiling the jury pool. Judge Tanya Chutkan subsequently told Trump that making inflammatory statements that might taint the jury pool would result in an acceleration of the trial date.

          In the weeks following those two warnings, Trump has violated the spirit if not the letter of those warnings multiple times a week. It appears that Jack Smith may have filed a motion asking Judge Chutkan to enforce her order against inflammatory statements by Trump.

          The details are not clear because many of the pleadings are filed under seal, but on Tuesday, Jack Smith filed a procedural motion that concluded with the following:

In his Motion to Vacate, the defendant instead suggests an unworkable three-week briefing process for the Court to decide whether every ordinary filing that refers to Sensitive Materials may be docketed. Such a requirement would grind litigation in this case to a halt, which is particularly infeasible given the pressing matters before the Court—including the defendant’s daily extrajudicial statements that threaten to prejudice the jury pool in this case, as described in the Government’s motion.

See Government's Opposition to Motion to Vacate.

          The government’s main motion is under seal, but as the snippet above indicates, the main motion describes Trump's “daily attempts to prejudice the jury pool.” One reasonable interpretation is that the government is asking Judge Chutkan to place limits on Trump's ability to comment on the case. Any other defendant would have had their pretrial release revoked and would be awaiting trial in jail.

          Let’s hope that Judge Chutkan forces Trump to abide by the warning from Judge Chutkan and the order from the magistrate judge who presided over the arraignment. While sympathizing with the difficult spot in which Judge Chutkan finds herself, Trump's contumacy erodes confidence in and respect for the rule of law. That is an injury to all Americans that should be addressed and remediated by modifying Trump's conditions of release.

Sentencing of Proud Boys Leader.

          Enrique Tarrio was sentenced to 22 years in prison for coordinating the attack on the Capitol by the Proud Boys. See CNN, Enrique Tarrio: Proud Boys leader sentenced to 22 years in prison for January 6. Judge Tim Kelly added a terrorism enhancement to Tarrio’s sentencing calculation but apparently declined to add time for that enhancement—the same approach he used with other Proud Boys defendants. As a result, the sentence imposed on Tarrio was nine years shorter than recommended by the Federal Sentencing Guidelines.

          Tarrio’s lawyer said he was caught off guard by the sentence and will appeal. The government will undoubtedly cross-appeal the shorter-than-recommended sentence given the application of the terrorism enhancement.

Elon Musk says he will sue the Anti-Defamation League for the decline in Twitter’s advertising revenue.  

          Ever since Elon Musk took over personal control of Twitter’s content, the amount of antisemitic hate speech on the platform has exploded. The Anti-Defamation League—among other organizations—has sharply criticized Musk for making Twitter a platform that permits antisemitic hate speech to occur and remain posted indefinitely. Because of those criticisms—and Musk’s general erratic behavior and business decisions—advertisers have fled the platform.

          Over the last week, Musk has engaged with several antisemitic posters who suggested to Musk that the Anti-Defamation League is the cause of the decline in advertising revenue on Twitter. Musk’s interactions with the antisemitic posters prompted him to threaten to sue the ADL for Twitter’s decline in business. The details are explained in Talking Points Memo, Musk’s Epic, Antic Labor Day Weekend Against The Jews.

          I have urged Twitter users to remain on the platform to provide a counterweight to reactionary views that are beginning to dominate on Twitter. But Musk is now threatening to sue the ADL for correctly pointing out that antisemitic speech has experienced a surge on Twitter under Musk’s leadership. The ADL’s opinion is clearly protected by the First Amendment. Is it time to reconsider sticking it out on Twitter? I will leave that to your conscience, but “blaming the Jews” has a long and ugly history. If that becomes Twitter’s official position regarding the cause of its business woes, it becomes increasingly difficult to remain on the platform.

Update on WSJ poll.

          After I wrote about the WSJ poll last night, the WSJ changed how it described its sample size. On Monday, beneath graphics summarizing the results, the Journal described its methodology as follows:

Methodology: The poll contacted 1,500 registered voters Aug. 24-30 and 750 of these responded to the poll that has a margin of error of 3.6%.

          On Tuesday, the description beneath the summary graphic was updated to say the following:

Source: Wall Street Journal telephone and text-to-web survey of 1,500 registered voters. Graphic reflects responses of 750 voters. Margin of error +/- 3.6 pct. pts.

          Although the wording change was slight, the Journal no longer says that only 50% of those surveyed responded to poll. Instead, the Journal said that its summary graphs reflected “responses of 750 voters.”

          What gives?

          Reader Larry Kurzweil helped me understand the confusion in the WSJ’s description of its own poll. In the underlying report, the polling organization “split” the survey respondents into two groups of 750 each. Members of the two groups were asked some of the same questions, but not all. By “splitting” some questions between two groups of 750 each, the margin of error increased dramatically—from +/-2.5 pct. pts. to +/- 3.6 pct. pts. for those questions that were split between groups.

          While the above may be more detail than you want, it affects my statement yesterday—based on the WSJ’s own description—that only 750 out of 1,500 voters surveyed responded to the poll. The WSJ’s inaccurate description of its own poll led other media outlets to make the same observation. My other criticisms of the poll remain.

          But, as many readers noted, I should have also included a statement that the poll was conducted by a firm that was the “official” polling organization for Trump's 2016 campaign and currently serves as the pollster for a leading Trump super-PAC. That is the same firm that provided 2016 internal Trump campaign polling data to Paul Manafort, who then provided it to Ukrainian operatives working for Russia. Add that fact to the reasons why we should “ignore the polls”—especially those in the WSJ created by Trump's captive polling organization.

Interested in helping Democrats in Durham, North Carolina?

          A reader is involved in Precinct 6 in Durham, North Carolina and is running a Zoom fundraising event on Sunday, September 10, 2023, at 4:00 PM to 5:30 PM Eastern.

          The speakers will be:

1.     Nancy MacLean, author of Democracy In Chains: The Deep History of the Radical Right's Stealth Plan for America

2.        Tony the Democrat, Founder and Director of postcardstovoters.org/

3.         Elijah King, 3rd vice chair of the North Carolina Democratic Party.

4,         Beverly Gray, MD, a Durham OBGYN who, along with Planned Parenthood South Atlantic, filed a federal lawsuit challenging NC’s new abortion bans.

Register here.

Donate here.

Concluding Thoughts.

          In response to yesterday’s column, many readers sent notes saying, like the following: “Thanks for the pep talk. But secretly, I live in fear every day that Joe Biden will stumble and fall, have a health crisis, or say something that will reinforce the impression that he is too old to be reelected.”

          Let me take away your needless anxiety on the above points. Between now and November 2024, there is a 100% chance that Joe Biden will experience every one of the above events—and he will still be the best candidate by orders of magnitude. So, stop worrying about your fears. They will come true. Get over it. Then get back to work ensuring that Biden will beat Trump by 15 million votes.

          The obsessive worry about Biden’s potential stumbles and gaffes arises from an understandable affection for Joe combined with a nagging fear that he is slowing a bit. He is. Almost every 80-year-old in America is. (If you are the exception, celebrate your good health and unyielding acuity with humility and gratitude, recognizing that your experience is not universal. No need to brag.)

          The fact that Biden is 80 is relevant—up to a point. Fitness to serve as president is not a numerical test based on date of birth. Even if Biden is older than your ideal candidate, he is still head-and-shoulders the best candidate—and that statement applies to every GOP pretender and third-party fraudster.

          Moreover, the obsessive worry about Biden ignores two overwhelming facts: First, Trump is subject to the same perils—with the addition of 91 felony counts. Second, as I wrote yesterday, Biden and Trump are surrogates for two different visions of America. People get that. Voters who cite Biden’s age as the deciding factor are looking for an excuse to rationalize their vote for a twice-impeached, quadruple-indicted, coup-plotting, sexual abuser, compulsive liar, and serial cheater—on his taxes and his wives. In the face of those deficits, the best they can come up with is, “Biden’s too old.”

          We live in a world where Joe Biden is the strongest candidate the Democrats have, and he is 80 years old. Worrying about that fact is exhausting, distracting, and pointless. As much as possible, set aside worries about Joe Biden’s age and move forward.

          For a “tougher love” version of the above, see Jonathan V. Last in The Bulwark, The Roots of Biden Panic. But if you feel sufficiently buoyed, let’s declare victory and get back to work.

          Talk to you tomorrow!