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January 12, 2023
President Biden’s legal team found a second cache of classified documents dating from his service as Vice President. As before, the documents were located at a private office used by Biden after he completed his term as Vice President. To say that the news is unfortunate and unwelcome is an understatement. Pundits claim that the discovery creates political complications for any prosecution of Trump for theft of defense secrets at the very moment that special counsel Jack Smith appears to be breaking free of the Garland-era reluctance to prosecute Trump. The right-wing media and politicians have already distorted the discoveries to create a false equivalence between Trump’s theft and concealment of classified documents and Biden’s accidental possession of similar documents.
Should we be worried? Nah! Why? Because Biden is just going to have to suck it up and suffer the unfair attacks caused by the negligence of his staff. He must fall on his sword, issue thousands of mea culpas, and explain why his innocent possession of classified documents is different from Trump’s theft of defense secrets. He should bend over backward to answer every question, dispel every unfair inference, and provide every detail of long-ago ministerial actions that are probably lost to the fog of history.
In the meantime, special counsel Jack Smith should make his prosecutorial judgments about Trump without regard to the political fallout for Biden. Is it possible that a decision to prosecute Trump will ratchet up pressure to appoint a special counsel to investigate Biden? If it does, too bad for Biden. He is currently immune from prosecution and will be out of office before the problem poses a legal threat to him. And the great likelihood is that Biden has no legal exposure because he is innocent of wrongdoing. Proving that point may be painful for Biden, but no amount of regret, handwringing, or cursing the darkness on our part will make that path any easier for Biden. So, let’s accept it and get on with the business of indicting Trump for a crime that would have already resulted in the issuance of an indictment for any other American.
To be clear, I am not saying that what is about to happen to Biden is fair or right. I am saying that whatever happens to Biden is irrelevant to the decision to prosecute Trump. And I am saying that we must hold the media accountable for lazy or sloppy journalism. An example of such careless journalism appears in a recent NYTimes headline, Investigating Trump, Jack Smith Faces Headwinds Few Others Have, followed by the subheader, “Jack Smith’s challenges include . . . the recent disclosures of President Biden’s retention of classified documents.” Wrong!! Nothing about Biden’s “retention” of documents should create any “headwind” for Jack Smith’s investigation of Trump—and shame on the NYTimes for suggesting otherwise.
The effort to force the media to be accurate and balanced in their reporting is bearing fruit in some quarters. See, e.g., Jordan Rubin’s op-ed at MSNBC, Biden isn’t on the same legal planet as Trump when it comes to classified docs. As Rubin explains, there is no evidence that Biden is guilty of “willfully” retaining documents after a demand for their return or lying about his continued possession of classified documents—as Trump did on both counts.
Still, journalists and commentators who have otherwise been chastened by the “false equivalency” warnings have retreated to the second refuge of reporters seeking to avoid real work and analysis—the “unanswered questions” gambit. When a story is unfolding and appears to be a non-event, it can nonetheless be used to fill airtime by reciting facts that “We don’t yet know”—and may never know. Some reporters compile lists of “unanswered questions” and pretend that the lack of answers has sinister significance.
But the lack of answers to questions posed by journalists often represents the genuine limit of our knowledge or ability to recall—and should not be used to imply malign intent. Who packed the boxes in Vice-President Biden’s offices in January 2017? Why is there more matter than antimatter in the universe? What did you eat for lunch on January 3, 2017? Not every unanswered question implies criminal wrongdoing. Nor does the inability to provide such answers today (as opposed to next week) suggest criminality.
While I am as disappointed as most Democrats about the unfortunate and ill-timed discoveries of classified documents in Biden’s possession, my greatest concern is that those discoveries not derail the efforts of special counsel Jack Smith to charge Trump as soon as the evidence warrants. (In my view, that point was reached no later than December 2021.) Otherwise, don’t overthink or fret about Biden’s predicament. He is going to be just fine from a legal standpoint. Will it damage him politically? Maybe. But that outcome rests in the hands of Biden and his staff, not yours. And other events may soon overtake this tempest in a teapot. Read on!
Coda to the classified documents story.
Another reason to not despair over the Biden documents gaffe is that Trump’s exposure goes far beyond the theft of defense secrets—and special counsel Jack Smith appears to have that broader exposure in firm view. The Washington Post reported on Wednesday that Trump campaign officials received subpoenas last month for documents relating to false claims about “rigged” voting machines, fundraising appeals for and disbursements from the non-existent “Election Defense Fund” created by Trump after his loss in November 2020, and the source of legal defense fees for former Trump campaign officials. See WaPo, Jan. 6 subpoena seeks info on voting machines, fraud claims from Trump campaign aides
But the most encouraging paragraph in the WaPo article refers to a federal grand jury investigating the events of January 6th. Per WaPo,
Separately, several lawyers involved in the investigation said the Jan. 6 grand jury had accelerated its activities in recent weeks, bringing in a rapid-fire series of witnesses, both high and low level.
A single indictment of Trump will relegate the Biden document story to the dustbin of history, where it belonged the moment it was first reported.
Illinois passes assault rifle ban.
On Wednesday, Illinois became the ninth state to impose an assault weapons ban. See Huffington Post, Illinois Bans Semi-Automatic Weapons In Gun Safety Win. Per HuffPo,
The new law prohibits the manufacture, sale and future purchase of semi-automatic firearms, high-capacity magazines and rapid-fire devices that turn firearms into machine guns. The legislation also has language strengthening the state’s Firearm Restraining Order law, which helps keep guns away from people in crisis.
The ban went into effect about six months after the July 4th mass shooting in Highland Park, Illinois that resulted in seven deaths and dozens of injuries. The legislation in Illinois should give us hope that progress is possible against the scourge of assault rifles and high-capacity magazines.
Progress against the extremist faction of the GOP in state legislatures?
Several readers sent me a link to Thomas Edsall’s op-ed in the NYTimes, Opinion | Meet the Republicans Who Are Facing Down the Hard Right. The readers found reason for optimism in Edsall’s review of tentative efforts in several states for moderate Republicans to join in governing alliances with Democrats. Edsall addresses developments in the respective state assemblies in South Carolina, Ohio, and Pennsylvania. Edsall also notes positive moderating developments in Alaska and Kansas.
As Edsall notes, the move toward the center in a handful of states could be a reaction to the “take no prisoners” agenda forced on the GOP by MAGA extremists at the national level. Although Edsall doesn’t draw any firm conclusions, he notes the possible positive trend at the state level may continue despite increasing extremism in Congress. If true, that would be a welcome development.
How low can Kevin McCarthy go?
Answer: There is no bottom to how low Kevin McCarthy will go, so I will be brief.
This week, McCarthy sent a fundraising email asking potential donors to “vote” on whether Rep. Adam Schiff should be removed from the House Intelligence Committee. (As described on Lawrence O’Donnell’s interview with Schiff on 1/11/23.) Traditionally, the intelligence committees in both chambers have been bipartisan bodies above politics. McCarthy’s effort to use membership on the House Intelligence Committee as a cudgel to punish Adam Schiff for his stellar role in the first impeachment trial of Trump is despicable.
On Wednesday, a reporter asked McCarthy if he would discipline Rep. George Santos after admitting that he fabricated major parts of his resume. McCarthy responded, “Yeah. So did a lot of people here and in the Senate. . . .” See Talking Points Memo, McCarthy on Santos: Who Among Us Hasn’t Fluffed Up The Old Resume? By the way, Talking Points Memo is doing a phenomenal job of covering the Santos story. After reading the latest TPM story, it is difficult to believe that Santos will avoid prison. See TPM, Campaign Insider Sees ‘Perp Walk’ In George Santos’ Future.
After McCarthy gave away the store in his bid to become Speaker, Adam Schiff said that McCarthy was Speaker “in name only.” I didn’t realize how accurate Schiff’s description was until today.
As explained in this week’s Pod Save America, McCarthy handed over control of all legislation in the House to three members of the Freedom Caucus. Listen at Apple Podcasts, Pod Save America, First Rule Package of Fight Club. The Rules Committee determines whether, when, and how legislation will make it to the House floor. That is a process usually controlled by the Speaker through the Rules Committee, which is typically stacked with close allies of the Speaker.
But McCarthy agreed to place three Freedom Caucus Members on the Rules Committee—giving them a majority of the Republicans on the Committee. McCarthy thus gave to the Freedom Caucus the core power of the Speaker’s authority over the House—the ability to control the progress of legislation through the House to passage. If the Freedom Caucus doesn’t want a bill to come to the floor, there is nothing McCarthy can do about it. As Schiff said, “Speaker in name only.”
As a consequence, the bills that do come to the floor will have the imprimatur of the extremist Freedom Caucus—making the bills unpassable in the Senate and irrelevant to most Americans. The House passed two such bills today (relating to abortion). Reporting on those bills is absent from every major media outlet to which I subscribe—because they are viewed as political grandstanding rather than serious legislative efforts.
So, in their first week on the job, the GOP majority in the House is already pushing itself toward irrelevance. While we should never rely on Republicans to defeat themselves, we should acknowledge that their majority status has broken their stride and flummoxed politicians whose entire careers have been dedicated to saying, “No.”
It has been so long since Republicans have actually accomplished something in Congress, they have forgotten how. That fact will not be lost on their constituents going into 2024—especially if we are diligent in reminding voters of that truth. So, if you are keeping score, we are three days into the 118th Congress and the only thing Republicans have accomplished is to seat a conman who lied his way into Congress in the most egregious example of fraud on the electorate in our nation’s history.
They have a long way to go to match the American Rescue Plan, the Infrastructure Investment and Jobs Act, the Inflation Reduction Act, CHIPS and Science Act—just to name a few of the accomplishments of Democrats in the 117th Congress under Nancy Pelosi’s leadership.
Talk to you tomorrow!