Impeach, ready, aim!

August 30, 2023

          To our friends and readers in the path of Hurricane Idalia: Please exercise caution and follow directions from local authorities. Do not hesitate to ask for help from friends, neighbors, and strangers! They will gladly help. This is no time to be hesitant or proud. Americans are at their best in times of crisis. Be safe!

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          Joe Biden continues to deliver on his promises. On Tuesday, the Biden administration announced that it would begin negotiating prescription prices with drug manufacturers for ten commonly prescribed drugs:

Eliquis, Jardiance, Xarelto, Januvia, Farxiga, Entresto, Enbrel, Imbruvica, Stelara and Fiasp/NovoLog insulin products.

          In remarks at the White House, President Biden said that the negotiations for drugs covered by Medicare would include

drugs to treat everything from heart failure, blood clots, diabetes, kidney disease, arthritis, blood cancers, Crohn's disease and so much more. Today is the start of a new deal for patients where Big Pharma doesn't just get a blank check at your expense and the expense of the American people. On my watch, health care should be a right not a privilege in this country.

          Per the Inflation Reduction Act, the administration would designate an additional 15 drugs for price negotiations in 2027 and 2028, and 20 new drugs per year thereafter. Tens of millions of Americans will pay substantially lower out-of-pocket costs when the lower prices take effect in 2026.

          What is the Republican response to Biden’s historic achievements on behalf of the American people? They plan to impeach him. Why? It doesn’t matter. Distraction is the point. Republicans are willing to “Shoot first, ask questions later” because of Trump's increasing legal jeopardy. In apparent recognition of Trump's self-evident guilt, Republicans are willing to do anything to change the subject—even if that means impeaching Biden on “grounds to be named later.”

          As one “GOP lawmaker” told CNN (anonymously),

There’s no evidence that Joe Biden got money, or that Joe Biden, you know, agreed to do something so that Hunter could get money. There’s just no evidence of that. And they can’t impeach without that evidence. And I don’t I don’t think the evidence exists.

          Of course, the House GOP caucus is doing Trump's bidding. See Forbes, Trump Tells Congressional Republicans: Impeach ‘The BUM’ Biden Or ‘Fade Into Oblivion’.

          The threatened impeachment inquiry against Biden will overlap with the one-month period remaining for passing eleven spending bills necessary to fund the government beginning October 1, 2023. So, as the nation careers toward a government shutdown, Republicans will waste time with empty political melodrama attacking a president who continues to overperform and exceed expectations.

          In addition to a sham impeachment, Republicans may use the “must-pass” spending bills for the 2023-2024 budget to strip funding for special counsel Jack Smith’s prosecutors. See Talking Points Memo, Far-Right House GOPers Toss Targeting Trump Prosecutors Into Shutdown Threat Mix.

          Here’s the takeaway for people who yearn for the return to the rule of law: The threats to impeach Biden and defund Jack Smith are signs of desperation and fear. They signal that Trump is on the defensive and that at long last the American people are gaining the upper hand after six years in which Trump has run amok. If Trump were confident of his legal defenses, he would not be calling on House Republicans to rescue him.

Legal developments.

          The Georgia criminal proceeding.

          Before examining today’s developments in the criminal proceedings against Trump, I repeat my advice that readers should not conflate the criminal proceedings against Trump and the effort to defeat him at the polls. As between those two efforts, defeating Trump at the ballot box is the most important, by far. Trump will be convicted of felonies in federal and state court, but the path to those convictions will be filled with twists and turns. No final conviction will be achieved until long after the 2024 election (even if a trial is held before then). So, the day-to-day procedural developments are relevant, but not outcome determinative by any means.

          In Mark Meadow’s proceeding to remove the Georgia criminal charges to federal court, Judge Steve Jones issued an order to both parties asking for briefing on the following question:

Would a finding that at least one (but not all) of the overt acts charged occurred under the color of Meadows's office, be sufficient for federal removal of a criminal prosecution under 28 U.S.C. § 1442(a)(I)?

          The most reasonable interpretation of the above question is that Judge Jones has concluded that “at least one” overt act occurred under color of Meadow’s capacity as a federal officer. That finding, in turn, leans in favor of removal of Mark Meadows’ criminal case to federal court.

          If that happens, that is okay! D.A. Fani Willis will remain as the prosecutor on the case and will continue to prosecute criminal charges under Georgia law. While it is true that the jury pool in federal court will be selected from a larger area than Fulton County, we should not pretend that fact is outcome-determinative.

          While Fulton County is heavily Democratic, about 1-in-4 voters in Fulton County voted for Trump in 2020. See Georgia County Presidential Election Results 2020. It is therefore reasonable to expect that a jury pool in Fulton County would consist of 25% Trump voters. So, please, let’s take down the hysteria a few notches about removal to federal court expanding the jury pool. There will be Trump supporters on any jury appointed in Georgia. We should have confidence in the jury system.

          Federal Judge Steve Jones is a more experienced trial judge than the newly appointed state court judge handling the trial in Georgia. And Judge Jones served as a state court judge before his appointment to federal court. A good argument can be made that removing the case to federal court is “trading up” for a better trial judge!

          The Defense Secrets case in Florida.

          Trump and the right-wing media are reporting that Jack Smith’s prosecutors met with the Biden administration shortly before issuing the indictment against Trump. That is not true. Instead, a senior counterintelligence official at the DOJ, Jay Bratt, interviewed a witness who worked in the Trump White House and continues in that same position in the Biden White House. See The Washington Post, Why a DOJ lawyer questioned a Trump case witness at the White House.

          Per WaPo, a former federal prosecutor said that interviewing federal witnesses at their federal office is standard procedure:

“It is completely standard that when you are interviewing someone who works in the White House to do the interview at the White House,” said David Aaron, a former federal prosecutor who worked on national security cases. “When you are interviewing someone who works at the NSA [National Security Agency], you go to NSA. . . . [I]t’s a courtesy.”

          Moreover, a spokesman for special counsel Jack Smith described the session as a “case-related interview” and declined to comment further.

          So, when you see right-wing media reporting that “Jack Smith” met with “the Biden administration” before indicting Trump, that is simply not true.

Judge Ho takes control of nuclear safety in the US.

          You may remember that federal court of appeals judge James Ho recently filed a concurring opinion in which he described the “aesthetic injury” caused by abortion to doctors who are denied the experience of delivering babies. That same judge issued a decision in which three judges on the Fifth Circuit Court of Appeals essentially appointed themselves the arbiters of the disposal of nuclear waste in the US. See Vox, Texas v. NRC: America’s Trumpiest court just put itself in charge of nuclear safety.

          Per Vox,

Judge James Ho is not a nuclear scientist, an expert in energy policy, an atomic engineer, or anyone else with any specialized knowledge whatsoever on how to store and dispose of nuclear waste.

Nevertheless, Ho and two of his far-right colleagues on the United States Court of Appeals for the Fifth Circuit just put themselves in charge of much of America’s nuclear safety regime — invalidating the power of actual nuclear policy regulators to decide how to deal with nuclear waste in the process.

          Judge Ho’s opinion is a dumpster fire of anti-regulatory broadsides on “the administrative state.” Judge Ho (and his fellow Federalist Society judges) may hate the administrative state, but the US will soon have 200,000 metric tons of nuclear waste on its hands. Congress has ordered the Nuclear Regulatory Commission (NRC) and the Environmental Protection Agency (EPA) to determine how and where nuclear waste should be stored. Under Judge Ho’s decision, a three-judge panel of the Fifth Circuit gets to make those decisions.

          While disposing of nuclear waste is no one’s favorite topic, it is one that should be left to scientists and engineers whose charge is to protect public health and safety. While much of Judge Ho’s decision is nonsense, two paragraphs invoke the “major questions doctrine,” in which the reactionary majority on the Supreme Court granted itself the right to overrule congressional judgments delegating regulatory authority to federal agencies. The Supreme Court’s reactionary majority may soon find itself struggling with the question of where to store 200,000 tons of nuclear waste if it rejects the judgments of the NRC and EPA. Is that a decision we should leave up to Clarence Thomas and Samuel Alito? I vote no!!

Groundwater and climate change.

          The effects of human-caused climate change are manifesting themselves everywhere—as should be expected given the interdependence of the Earth’s atmosphere, oceans, land masses, and ecosystems. We can feel overwhelmed if we simply catalog the many ways in which climate change manifests itself. We cannot give in to helplessness. It is never too late to make changes that will benefit current and future generations. The most important thing we can do is to elect leaders who will prioritize the reduction of reliance on fossil fuels.

          We must help others to see how the climate crisis is affecting them. For some, it will appear as wildfires. Others may see it in disappearing animal populations, early spring thaws, bee colony collapse, or new disease carriers like ticks and mosquitoes in our backyards.

          The New York Times published an important article on the diminishing groundwater aquifers in the US. The article contains interactive graphics and detailed data regarding the disappearing groundwater in large swaths of the US. See NYTimes, America Is Using Up Its Groundwater Like There’s No Tomorrow. (This article should be accessible to all.)

The Times analyzed water levels reported at tens of thousands of sites [85,544], revealing a crisis that threatens American prosperity.

Nearly half the sites have declined significantly over the past 40 years as more water has been pumped out than nature can replenish.

In the past decade, four of every 10 sites hit all-time lows. And last year was the worst yet.

Global warming is shrinking the snowpack that feeds rivers, increasing the reliance on groundwater to sustain communities, lawns and crops, even as rising temperatures mean that plants need more water. A warmer world also causes more surface water to evaporate, leaving less to seep through the ground to replenish overstressed aquifers.

          There is much more in the Times article. I urge you to read it from start to finish and then share it with someone engaged in an activity that relies on groundwater—agriculture, homebuilding, recreation, manufacturing, fishing, extractive industries, gardening, bathing, drinking, and cooking.

          Most Americans support efforts to reduce reliance on fossil fuels, but our politicians are still controlled by industry lobbyists. But WE control who is elected. It is time for all Americans to put climate change at the top of their issues list when deciding how they will cast their vote. Remember that at the GOP debate last week, Vivek Ramaswamy declared that “Climate change is a hoax.” The only hoax is politicians who refuse to address a problem that is an economic and national security emergency affecting the lives of every American.

Concluding Thoughts.

As Americans stare down another possible natural disaster, we should take comfort in the fact that our nation has the resources and determination to help victims rebuild their lives and communities. While our vast size and diverse and competing states often seem like an obstacle, in times of crisis they are a source of strength. On Tuesday evening, no American cares about the political differences arising from Florida that divided us yesterday. Today, we care only for the safety of the residents of Florida—all of them. Be safe, and know that your fellow Americans stand ready to help in whatever way you need.

Talk to you tomorrow!