House Democrats are in a position of strength.
House Democrats are in a position of strength.
October 3, 2023
GOP Rep. Matt Gaetz followed through on his threat to bring a “motion to vacate the chair,” an effort to depose Speaker Kevin McCarthy. As of Monday evening, only three additional Republicans have indicated their intent to support the motion to vacate. However, the procedure surrounding the motion is maddeningly complex, so the small numbers are deceptive. As noted in yesterday’s newsletter, Democrats are in a strong position and effectively hold McCarthy’s fate in their hands.
Rather than trying to explain every possible outcome of the motion, let’s focus on two key facts:
First, Republicans hold a four-seat majority in the House.
Second, to survive the motion, McCarthy needs support from a majority of all House members who are present and voting.
If all members of the House vote on the motion to vacate, McCarthy can afford only five Republican defections before he will need support from Democrats to retain his Speakership.
But if Democrats do not vote on the motion—i.e., instead respond only that they are “present”—that reduces the number of members “present and voting.” By answering “present,” Democrats reduce the number of votes that McCarthy needs to reach a majority to survive the motion.
The situation is dynamic and will be decided on the floor of the House in a rugby scrum reminiscent of the vote that finally elected McCarthy to the Speakership.
For his part, Gaetz claims he has the votes to depose McCarthy or force him to rely on Democrats to remain in power. Gaetz told CNN:
I have enough Republicans where at this point next week, one of two things will happen. Kevin McCarthy won’t be the speaker of the House, or he’ll be the speaker of the House working at the pleasure of the Democrats. And I’m at peace with either result, because the American people deserve to know who governs them.
But the “help” from Democrats could be low-key enough to be indiscernible. If, as expected, some House Democrats travel to California to attend the memorial services for Senator Dianne Feinstein on Thursday, they will be “absent,” thereby lowering the number of votes McCarthy needs to secure a majority of those “present and voting.”
There are other outcomes that involve “tabling the motion” or deals between Democratic and Republicans regarding rule changes. See CNN, Democrats weigh McCarthy's fate as GOP moderates float rules changes to save speaker.
Whatever happens, it will be over by Wednesday of this week. Gaetz made the motion on Monday; McCarthy must call for the vote in two days.
I have been ambivalent on the question of whether Democrats should “stay out of the fight” by voting “present” and allowing Republicans to control McCarthy’s fate. But then I read the following from Josh Marshall of Talking Points Memo:
Why would Democrats bail out McCarthy? The best argument for doing so would be that he’s twice chosen deal-making to fulfill core governmental responsibilities over GOP nihilism. Once in May and again at the end of September.
It’s highly questionable whether that’s enough. He’s enabled a thoroughly corrupt impeachment inquiry against President Biden. He’s created a path that leads almost inevitably to the President’s impeachment. He immediately broke the May deal thus setting up the latest crisis. He has enabled ex-President reign of lawlessness and chaos. He’s thoroughly abused his power as Speaker.
The political calculus for the Democrats almost certainly dictates allowing the House Republican caucus to drown in its own chaos. He appears set on preventing a vote on Ukraine aid that the great majority of the House supports.
Why would Democrats further enable this? There’s just no rationale for doing so without specific and enforceable concessions.
Justice Clarence Thomas (finally) recused himself.
The Supreme Court denied review of an appeal by Trump's coup lawyer, John Eastman. The order declining to hear Eastman’s appeal included a note stating that Justice Thomas did not participate in the order or decision. See Order List (10/02/2023) at page 36.
The recusal is notable because it appears that Justice Thomas has finally found an ethical line that even he will not cross. In this instance, Justice Thomas wisely recused himself from consideration of a case that involved the attempted coup in which his wife was a cheerleader, if not co-conspirator. See WaPo, Ginni Thomas corresponded with John Eastman, sources in Jan. 6 House investigation say.
The recusal is significant because it demonstrates that public pressure can change the unethical behavior of Justices on the Court. Thomas had previously refused to recuse himself from cases involving other J6 participants, including an appeal from Mark Meadows.
The shift in Thomas’s position is notable. See Talking Points Memo, Ooo, What’s This? Justice Thomas Recuses From Eastman Case. But the denial of review is also significant. Eastman sought a review of a decision by U.S. District Judge David Carter, who found (by a preponderance of the evidence) that Eastman engaged in a crime or fraud when communicating with Trump about overturning the 2020 election. The denial of review by the Court is bad news for Eastman, who should be thinking about a plea deal to save himself from a lengthy prison term.
Trump continues to violate conditions of release by verbally attacking judges, witnesses, and prosecutors.
Special counsel Jack Smith is seeking a restraining order from Judge Chutkan to prevent Trump from intimidating witnesses and spoiling the jury pool by making threatening and incendiary statements. The challenge for Jack Smith is that Trump continues to make threatening statements while the motion for a gag order is pending, forcing him to update his supplement his original evidentiary showing in a reply brief. The reply brief is here: Reply in Support of Motion to Ensure That Extrajudicial Statements Do Not Prejudice These Proceedings.
Smith wrote,
[I]n this case, Donald J. Trump is a criminal defendant like any other. And as this Court has correctly stated, it has an obligation to protect the integrity of these proceedings from prejudicial interference: “In a criminal case such as this one, a defendant’s free speech is subject to the release conditions imposed at arraignment and must also yield to the orderly administration of justice.”
The defendant should not be permitted to continue to try this case in the court of public opinion rather than in the court of law, and thereby undermine the fairness and integrity of this proceeding.
As Jack Smith was asking Judge Chutkan to prevent Trump from “trying this case in the court of public opinion rather than in the court of law,” Trump was trying the New York civil case against him “in the court of public opinion rather than in the court of law.”
Meanwhile, on breaks in the first day of New York’s trial against Trump for fraudulent business practices, Trump held court for the media in a courthouse hallway. Steps away from the judge who will determine the fate of his business, Trump said the following about the judge:
This is a judge that should be disbarred. This is a judge that should be out of office. This is a judge that some people say could be charged criminally for what he’s doing. He’s interfering with an election, and it’s a disgrace.
See Politico, Trump blasts judge during first day of $250 million fraud trial. Trump also said of Attorney General Letitia James, “You ought to go after this attorney general”—a vague reference that could be interpreted as a call for violence.
The point is that Trump continues to attack prosecutors, witnesses, and judges with allusions to violence inconsistent with his pretrial terms of release. One of those conditions prohibits Trump from intimidating “a witness, victim, juror, informant, or officer of the court.” See US v. Trump, No. 23 CR 257, Order Setting Conditions of Release at page 4.
Trump's statements in the New York courthouse in Manhattan on Monday violated several terms of his conditions of release by intimidating “officers of the court.” The violation was material, intentional, and dangerous. In the last week alone, Trump called for the execution of a witness in the J6 criminal proceeding (General Milley), called special counsel Jack Smith deranged, said Judge Engoron was deranged and should be disbarred, and said that someone should “go after” the NY Attorney General. Each of those statements violates the conditions of his release in the DC and Florida federal trials and the Georgia state trial.
Putting a presidential candidate in jail for violating the pretrial conditions of release would be a traumatic event for the nation. But it would be worse to do so only after one of the targets of Trump's verbal abuse becomes a victim of violence perpetrated by a madman incited to action by Trump's reckless and dangerous words. Let’s hope that one of the judges who granted Trump pretrial release revokes that freedom before it is too late.
Reader comment of the day.
Reader Kathy Rawle posted the following note about Banned Book Week:
Re: Banned Books Week: I posted this on Twitter. It would be great if folks urged their libraries to join Books Unbanned, or at least publicize it!
As we head into Banned Books Week, it's good to know there are now five libraries offering young people free access to books online:
Thanks to Kathy for bringing this free service to our attention!
Concluding Thoughts.
We will be in a period of instability for a few days (or weeks?) as the House GOP caucus pays the price for allowing the MAGA extremists to have their way for the better part of a year. The outcome is unclear, but the solution will involve a more significant role for Democrats in governing the House—there is simply no other path forward.
Even though many Republicans will choose chaos over cooperation with Democrats, it will take only two dozen Republicans to ensure a majority that can keep the government running. Saturday’s vote suggests that there are ten times that number of Republicans who are willing to set aside the performative anti-Democratic rhetoric to protect their constituents from calamity.
Democrats are in a strong position and should stay the course over the next few weeks; their reward should be a House that returns to its core purpose—governing for the good of the people.
Talk to you tomorrow!
PS: On Sunday, a friend invited me on 5-minutes’ notice to an “air show” at Huntington Beach, CA, that included a demonstration by the Air Force Thunderbirds. Not knowing what to expect, I grabbed my camera bag, hopped in his car, and eventually captured the shot below of two F-16s in an “inverted mirror” formation about 200 feet above the water. If you magnify the photo, you can see the twenty-something pilots in the cockpits.
I include the photo to make two points: First, to capture good photos, the secret is to take a lot of them. I took 1,200 photos in 2 hours. About ten of them were good. Second, whatever you think about the military and weapons of war, the pilots and ground crew were all young men and women with toddlers and infants playing in the sand at the beach as their parents zoomed by at 600 miles per hour.
The entire scene reminded me of the disproportionate burden imposed on young Americans to provide for our defense. While I was watching the air show on Sunday, I asked my friend what would have happened if there had been no funding bill passed the night before. “The show would have been canceled,” he said. The young families with infants and toddlers playing in the sand at the beach would not have received their regular paychecks. That is what MAGA extremists were willing to do to millions of American families who have volunteered to serve in the armed forces to protect us.
Robert, thank you for parsing out the legal problems Trump faces and the tough problems faced by those prosecuting him. I am gobsmacked again at Trump’s arrogance with the lies and veiled threats. I understand how reluctant any judge would be to jail Trump. But the man is painting a target on military personnel, judges and prosecutors. Time to remove his access to the media at the very least.
Thanks also for the photos of the air show and highlighting the young military families. I am the daughter, sister and widow of WWII and Vietnam veterans. My late husband died of ALS, which sadly is a service-related illness - upwards of 20% of people diagnosed with ALS in any one year are current or former military. When Trump called disabled veterans “losers” and demanded that he never again see any wounded warriors, well I won’t say what I said about him. You’ve asked us to keep our language clean and I respect that.
What I would like though is for Trump to be forced to silently walk through any VA hospital in the country. To see the broken, mangled bodies in wheel chairs, to hear the gasps of pain from those undergoing physical therapy, and to have to listen to the anxious, bored young kids in the waiting rooms- who would much rather be outside playing but instead sit with a parent or grandparent in the waiting room while the other parent gets the medical care they need. I will issue a special invitation that he be forced to go to the spinal care unit at the Minneapolis VA where my husband and I spent many hours. He should be forced to watch the slow, painful, devastating progression of ALS all the while knowing that the only outcome is death. And to witness the incredible competence of the entire staff of that unit including the legless Vietnam Vet who greeted Glen and me to ensure we were masked up and used the hand sanitizer before we entered - he would gently pick up Glen’s useless hands, rub the sanitizer over them, and thank us for our service to our country.. Made our day better. Every time.
That same VA hospital is now treating many wounded Ukrainian soldiers. Regardless whether McCarthy survives, I sincerely hope we find a way to continue to support the fight against Putin and autocracy. MAGAts be damned.
The picture you shared with us fantastic and if you were not an attorney you could have been a professional photographer. My reflections on the Trump trial is his constant attacks clearly demonstrates he has no defense or he would talk about it. I don’t like Kevin McCarthy but anything that rids the House of Matt Gaetz I support and I don’t trust Clarence Thomas and I think his recusal was more for show than anything substantial and as the saying goes for Trump, McCarthy and Thomas “ you can’t change the stripes on a zebra”