“It is time to act,” and “The heart of our democracy.”

February 15, 2024

The celebration of the Kanas City Chief’s victory in Super Bowl LVIII turned into a tragedy because of another mass shooting. The shooting killed 1 and injured 22—including 8 children. Although the motive remains unclear, the instrumentality is not: weapons of war permitted to be carried in public.

One year ago, Democrats in the Missouri legislature introduced a bill that would prohibit children from carrying weapons on public property without adult supervision. The bill was voted down by Republicans in the legislature. See AP (2/8/2023) Missouri House votes against limits on kids carrying guns. (Democratic Rep. Donna Baringer said police in her district asked for the change to stop “14-year-olds walking down the middle of the street in the city of St. Louis carrying AR-15s.”)

According to reports, there were 800 law enforcement officers in the crowd celebrating the Chief’s win. But everyone in the crowd (estimated to be in the hundreds of thousands) had the right to carry an assault rifle in public—putting police in an impossible situation of determining who is a criminal or terrorist threat, who is just showing off, and who is experiencing an emotional crisis.

Most Americans favor laws restricting gun access and oppose laws allowing unregulated carry of concealed firearms. See Pew Research Center, Key facts about Americans and guns (9/13/23). It is an issue that should be a centerpiece of a campaign focused on ensuring the safety and security of all Americans—especially children.

President Biden issued a statement after the shooting in Kanas City, saying,

Today’s events should move us, shock us, shame us into acting. What are we waiting for? What else do we need to see? How many more families need to be torn apart?

It is time to act. That’s where I stand. And I ask the country to stand with me.

To make your voice heard in Congress so we finally act to ban assault weapons, to limit high-capacity magazines, strengthen background checks, keep guns out of the hands of those who have no business owning them or handling them.

We know what we have to do, we just need the courage to do it.

President Biden has made his position clear on the killing and injuring of innocent people celebrating a Super Bowl victory. Donald Trump has remained silent. That fact, standing alone, tells us all we need to know about the differences between the two candidates.

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Special counsel Jack Smith files response in Supreme Court to Trump request for a stay.

On Monday, Trump filed an application in the Supreme Court for a stay of the DC Circuit Court of Appeals ruling rejecting his presidential immunity defense.

On Tuesday, the Supreme Court granted Jack Smith seven days to file an opposition.

Rather than take the full week to file an opposition, Jack Smith did so in one day. The brief he filed on Wednesday is here: Special counsel opposition to stay application. Smith is trying to make the point that Supreme Court should be acting with urgency, not with “business as usual” cadence.

On the substance, Smith writes,

The charged crimes strike at the heart of our democracy. A President’s alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his successor should be the last place to recognize a novel form of absolute immunity from federal criminal law.

Smith responded to Trump's argument that denying the stay will deprive his supporters of their First Amendment rights to association and free speech. Smith wrote, in part,

Delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict -- a compelling interest in every criminal case and one that has unique national importance here, as it involves federal criminal charges against a former President for alleged criminal efforts to overturn the results of the Presidential election, including through the use of official power.

[Trump's] personal interest in postponing trial proceedings must be weighed against two powerful countervailing considerations: the government’s interest in fully presenting its case without undue delay; and the public’s compelling interest in a prompt disposition of the case.

[Trump] assert[s] that the First Amendment rights of “tens of millions of American voters” compel further delay in the criminal proceedings. To the contrary, the charges here involve [Trump's] alleged efforts to disenfranchise tens of millions of voters. The national interest in resolving those charges without further delay is compelling.

Smith punctuated the one-day turn-around on his brief by asking the Court to grant an expedited briefing and hearing schedule if the Court accepts the case for review.

Smith wrote,

An expedited schedule would permit the Court to issue its opinion and judgment resolving the threshold immunity issue as promptly as possible this Term, so that, if the Court rejects applicant’s immunity claim, a timely and fair trial can begin with minimal additional delay. The government proposes a schedule that would permit argument in March 2024.

There are several reasonable paths forward: The Court could (a) deny the stay; (b) grant the stay and expedite review; or (c) grant review and summarily affirm the DC Circuit’s opinion.

Almost any other course of action by the Supreme Court will grant Trump the relief he seeks—delaying trial until after the election. If he is elected, he will then order the DOJ to drop or suspend the cases against him.

Given the threat to democracy posed by Trump, participating with Trump in his delay strategy would be unconscionable. Ian Millhiser addresses the link between the procedural path adopted by the Court and Trump's strategy of delay in his article in Vox, The Supreme Court will soon decide whether to sabotage Trump prosecutor Jack Smith.

Millhiser concludes his article with the following:

[E]ven a brief stay would reward Trump’s tactic of raising absurd legal arguments on appeal and then using the mere fact that these arguments are before an appeals court to delay his criminal trial.

Again, Trump’s legal argument is that he would be immune from prosecution even if he had turned the US military into a death squad targeting his enemies.

We don’t need the Supreme Court of the United States to tell us he’s not allowed to do that.

The course of action selected by the Supreme Court over the next few days will be consequential and historic. But as I have written before, nothing we are doing should change based on the Court’s ruling on the application for a stay. Even a conviction of Trump before November will not prevent him from appearing on the ballot or assuming office, if elected. So, we must forge ahead as if the preservation of our democracy depends on the outcome of the 2024 election—because it does.

We should not shrink from the task or worry unnecessarily. Democracy has been on the ballot in every election since 1789. Recent events have put that fact into high relief after a period of complacency.

Let’s hope the Supreme Court does the right thing, but we should not use any failure on its part as an excuse to surrender.

Instead, it should motivate us to work even harder to run up margins in the House, Senate and presidential vote—so that we can begin the serious work of reforming the Supreme Court.

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Nothing is going to happen in the House until mid-March.

The House is sitting on the Senate’s supplemental funding bill for Ukraine, Israel, and Taiwan. Oh, and the government will run out of spending authority on March 1 and 8. So, what does a busy House of Representatives do? Take a two-week recess, of course!

Per a note from Speaker Mike Johnson, the last votes this week will be held on Thursday at 2:30 p.m.—at which point the House will be in recess until February 28.

Did I mention that a partial shutdown is scheduled for March 1—three days after the House returns from its vacation, er, “recess”? (2024 is a leap year, so Congress gets an extra day during which it can do nothing.)

Not to worry. GOP House members will be spending their “recess” preparing their prosecution of Secretary Alejandro Mayorkas in the Senate impeachment trial. What an incredible waste of time! Read on!

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Mayorkas impeachment trial likely to be short—or non-existent.

Under Senate rules, it cannot conduct any business on the floor of the Senate until an impeachment resolution from the House has been acted upon. But because the Senate will reconvene after a recess only five days before the first tranche of government funding expires, dealing with the Mayorkas impeachment is the last thing anyone wants to do in the Senate. See The Hill, Mayorkas impeachment headed toward Senate graveyard.

For a more detailed legal discussion of the options before the Senate to quickly dispose of the impeachment, see Tribe, et al. in Slate, How the Senate should handle the disgraceful Mayorkas impeachment. In short, Professor Tribe recommends that the Senate dispose of the impeachment resolution by a “motion to dismiss” the charges.

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Don’t worry (yet) about the “national security threat” discussed in Washington on Wednesday.

Washington was abuzz on Wednesday when GOP Rep. Mike Turner sent a tweet saying that congressional leaders were briefed about a “serious national security threat” and urged Biden to declassify information about the threat. After many efforts to reassure the American public that there was nothing to worry about, some members of Congress told the press that the information related to Russian plans to place nuclear weapons in space. See NYTimes, Russia’s Advances on Space-Based Nuclear Weapon Draw U.S. Concerns.

While such a move would violate the 1967 Outer Space Treaty, Russia could withdraw from the treaty (presumably when the New SALT Treaty expires in 2026).

Saying that Russia might exit a treaty and suggesting that Russia has the intent—or the capability—to create a space-based platform for launching nuclear weapons are two entirely different things.

Retired General Barry R McCaffrey said on MSNBC on Wednesday evening that Russia “does not have and never will have” the ability to launch nuclear weapons from space. McCaffrey has experience negotiating the START II treaty with Russia, so he seems like a reliable source.

We should wait for more information from the administration, but at the moment, it seems Rep. Turner got way ahead of the actual intelligence findings.

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Concluding Thoughts.

A measure of the significance Tom Suozzi’s victory in NY 3rd’s congressional district is how forcefully pundits and Republicans tried to explain away the victory. The day began with Nate Cohn of the NYTimes tweeting that “even a decent Democratic win might be quite misleading” if it suggests positive news for Biden in November. Others then began to cite obstacles for Republican voters like the weather, candidate quality, and fundraising—without acknowledging that those factors applied equally to Democrats.

But a Newsweek headline won the prize for most ludicrous statement, Democrats' Joe Biden Problem Got Worse With Special Election Win.

Let’s get real. If Suozzi’s opponent had won, Republicans (and Nate Cohn) would be declaring the death of the Democratic Party.

The biggest part of Suozzi’s victory is a story that the media has essentially ignored—the massive grass-roots movement that emerged after the 2016 election. Tom Suozzi graciously acknowledged the contribution made by the grassroots volunteers to his victory.

But the media, pundits, and pollsters have ignored the grassroots movement. That movement is the secret behind the Democratic string of victories from 2020, 2022, 2023, and 2024. Nate Cohn has dismissed Democratic grassroots volunteers as “highly engaged, partisan, older voters” who generate massive turnout. He says that like it’s a bad thing!

I have seen those “highly engaged, partisan, older voters” up close and personal—and they are a force to be reckoned with! They are smart, experienced, devoted, battle-tested, organized, and tireless. Any political party would be lucky to have them—and it is the Democratic Party’s great fortune that the grassroots volunteer movement emerged, endured, and is besting MAGA across the land.

Tom Suozzi is a great candidate who ran a superb campaign. The real story of his victory is the army of volunteers across America who supported a candidate not in their district. That same army of volunteers is working hard every day to ensure that Democrats win up and down the ballot in November. Pollsters, pundits, and Nate Cohn dismiss them at their peril.

Congratulations to everyone on Tom Suozzi’s victory. You earned it the old-fashioned way—through hard work!

Talk to you tomorrow!