"Keep calm and carry on!"

August 17, 2023

          As Trump is inundated with unwanted publicity over his fourth indictment, President Biden is making the rounds to commemorate the one-year anniversary of the Inflation Reduction Act. But Biden’s efforts are buried so far down in the news feed that it is difficult to find his remarks. See, e.g., MSN/The Messenger, Biden Celebrates One Year of Inflation Reduction Act, but Stresses There’s ‘More Work to Do’ on the Economy.

In the major media, the “story” is whether the Inflation Reduction Act is “working” by delivering on the promises made when it was passed. Major media outlets are skeptical. See Washington Post, One year in, climate law tests Biden’s environmental justice pledge, and NYTimes, For Biden, Celebrating What a Law Did Rather Than What It Did Not.  (Both articles should be accessible to all.)

          The disparity in coverage is unfair. Biden is celebrating one of the most significant environmental bills ever passed by Congress, and the media treats it as an afterthought or a punching bag. Trump is dealing with his fourth indictment based on facts that have been in the public domain since January 2021 and the media can talk of nothing else. Oh, well! In this instance, “No news is good news.” If a candidate for president could pick which side of the news cycle to be on, “Not getting sufficient credit for legislative achievements” is preferable to “Defending his fourth indictment.”

          The Georgia indictment continues to dominate the news—as does a false news narrative that Americans are evenly split in their support for Trump despite four indictments. The persistence of that false meme is illustrated by the headline published by the Associated Press after it conducted a poll with the NORC Center for Public Affairs Research regarding attitudes toward Trump in light of his indictment. As the AP News headline tells it, “Donald Trump's actions has divided Americans along party lines, AP-NORC poll says.”

          The AP headline is misleading. While it is true that Americans are “divided” in a literal sense, it is more accurate to say that “A strong majority of Americans oppose Trump because of J6 and Georgia election interference,” which is what the AP/NORC polling data shows. You can check out the AP data for yourself, or read this analysis in Slate, Donald Trump: Americans are really not that "divided" about the former president's conduct in 2020.

          The Slate article takes a close look at the AP/NORC data to show that Americans are not evenly “divided” about Trump's criminality—even within the GOP. As explained by Slate, the AP/NORC poll gave respondents various gradations for opposing or supporting Trump. The AP headline focuses on only one of the five choices in the poll for its headline. But if you group the responses as “support, oppose, or don’t know,” Americans strongly disapprove of Trump's actions on J6 and in Georgia. Per Slate,

If you boil things down to “what he did was bad” or “what he did was OK,” Trump is a loser by margins of 64–21 and 64–15.

          Trump is in trouble even among Republicans:

A combined 42 percent of Republicans told the AP that Trump’s conduct in Georgia was illegal or unethical, while only 31 percent said he’d done nothing wrong. Regarding January 6th, 38 percent of Republicans said Trump behaved illegally or unethically, with 46 percent coming down on the side of “nothing wrong.”

          The Hill engaged in the same type of “accurate but misleading” cherry-picking from the AP/NORC poll with its headline, 53 percent in new poll say they would not support Trump if he is GOP nominee. Again, that statement is literally true, but the more relevant fact is that 64% of respondents say they “definitely” or “probably” would not support Trump, while only 36% of respondents say that they “definitely” or “probably” would support Trump for president in 2024.

          In citing the AP/NORC poll, I am not making the point that 64% of voters say they would not support Trump. (It is too early for polls to be meaningful predictors of election outcomes.) Instead, I am making the point that the media seems intent on understating opposition to Trump based on the indictments and overstating the notion of an evenly divided electorate that does not care about the indictments. They do.

          As always, we must not conflate the indictments and the election. Beating Trump at the ballot box is the only path forward. But Americans are paying attention to Trump's increasing legal jeopardy. Don’t let headline writers tell you differently.

 Further reflections on the Georgia indictment.

          After forty-eight hours to reflect on the indictment, commentators are providing helpful insight into the indictment. I highlight two of the most incisive commentaries below.

          Richard L. Hasen, Professor of Law at UCLA, has written an important essay that highlights the role of racial bias in Trump's plan to overturn the election. See Richard L. Hasen in Slate, Why the Fulton County indictment is different from Jack Smith’s case.

          As Professor Hasen writes,

[T]he complaint vindicates the interest of all Black voters in Georgia and across the country. When Trump made his voter fraud claims in 2016 and 2020, he constantly focused his accusations on Democratic cities with large Black populations.

On Nov. 27, 2020, for example, Trump tweeted: “Biden can only enter the White House as President if he can prove that his ridiculous ‘80,000,000 votes’ were not fraudulently or illegally obtained. When you see what happened in Detroit, Atlanta, Philadelphia & Milwaukee, massive voter fraud, he’s got a big unsolvable problem!”

The message was clear: Minority voters were stealing the votes of Trump’s white rural supporters. These racist tropes were also a major theme of Giuliani’s public-facing efforts to overturn the election.

          Hasen is right. In Trump's telling, the alleged voter fraud is always associated with Democratic strongholds that have large Black populations. And Rudy Giuliani’s vilification of Ruby Freeman and Shaye Moss by comparing their innocent vote-counting efforts to “passing around vials of heroin and crack cocaine” is as racist as it gets. It is no accident that the first motion to be filed by Trump and his co-conspirators will be to enlarge the Fulton County jury pool to include white, conservative counties encompassed in the federal Northern District of Georgia.

          A second important insight comes from Philip Rotner in his essay in The Bulwark, The Beating Heart of the Georgia Indictment. As Rotner notes, the “fake electors” scheme is at the heart of the Georgia indictment. A common defense to the “fake electors” scheme is that it was a contingent or back-up plan in the event that Trump's litigation succeeded in invalidating the vote in swing states.

          But as Rotner notes, there was nothing “contingent” about the fake electors’ scheme:

[T]he fake elector scheme wasn’t merely a contingency plan. It was an action plan. The fraudsters didn’t tuck the phony certificates into a drawer, hoping to have an opportunity to haul them out in the event of a miracle Trump victory in court.

To the contrary, they used the fake certificates immediately, actively and affirmatively to create the illusion that there were rival slates of official electors from the five states when, in fact, only Biden had been certified as the winner in all five states.

They sent the certificates to the National Archives and Congress and attempted to use them as a pretext for Vice President Mike Pence to kick the election results back to Republican state legislatures.

By my count, approximately 67 of the 161 “overt acts” alleged in the indictment—over 40 percent of them—refer expressly to the fake elector scheme. Each of these acts, in and of itself, is not necessarily a criminal violation. Some are and some aren’t. But they were allegedly acts taken in support of the overall criminal conspiracies, and they fill in the blanks in what was previously known publicly about the fake elector scheme.

          By sending the fake electors’ certificates to the National Archives, Trump hoped to create a basis for objections in Congress to the count of the legitimate electoral ballots—causing V.P. Mike Pence to send all electoral ballots back to the state legislatures for reconsideration. There was nothing “contingent” about the plan.

          Two final notes about the Georgia indictment. It appears that Trump never paid most of his lawyer/co-conspirators for their alleged “legal advice” designed to overturn the election—including Giuliani and Jenna Ellis. See CNBC,  Trump alleged co-conspirators never got paid by Trump team, and Newsweek, Jenna Ellis Pleads for Donations As Trump Allegedly Won't Pay Legal Fees. It seems likely that Trump did not pay other lawyers who now find themselves indicted for supporting Trump's attempted coup.

          Finally, Tamar Hallerman of the Atlanta Journal-Constitution posted a note saying that the discussion of a “five-year minimum prison sentence” for a RICO violation in Georgia is misleading. According to Hallerman,

A felony RICO conviction in Georgia comes with a 5-20 year sentence. But that doesn't necessarily mean prison time. Could be solely probation, prison time or a mix of both. My primer: What to know about Georgia’s RICO law (ajc.com).

          The Georgia indictment nonetheless presents a serious threat to Trump and his co-conspirators. As noted in the Rotner article above, portions of the RICO scheme simply have no defense—filing false certificates with the National Archives that claim to be duly selected electors for a state. The RICO claim is not pardonable—either by Trump or by the Georgia parole board. Trump will be forced to take the case seriously as he attempts to mount a campaign for president.

Fifth Circuit upholds a portion of Judge Kacsmaryk’s ruling banning mifepristone.

          You will recall that federal district Judge Kacsmaryk of Texas ordered the FDA to withdraw its decades-old approval of mifepristone. In his order, Judge Kacsmaryk revoked both the original FDA approval and more recent regulations expanding the ability to distribute mifepristone by mail. The ruling by Judge Kacsmaryk was a bad-faith travesty and a setup by reactionary anti-abortion organizations. The Fifth Circuit upheld Judge Kacsmaryk’s order, but the Supreme Court reversed the Fifth Circuit and ordered that mifepristone remain available until the litigation was finally resolved. The Supreme Court then ordered the case back to the Fifth Circuit for further consideration.

          On Wednesday, the Fifth Circuit upheld Judge Kacsmaryk’s revocation of the more recent FDA regulations regarding mailing of mifepristone. But, as explained by Ian Millhiser in Vox,

The single most important thing to understand about this decision is that it has no effect whatsoever, at least for the time being. Mifepristone remains legal, and it will remain legal unless the Supreme Court signs on to this effort to ban the drug.

As explained by Millhiser, it is unlikely that the Supreme Court will agree to any part of Judge Kacsmaryk’s legal travesty. See Vox, The fight over the abortion drug mifepristone is headed back to the Supreme Court.

          But the Fifth Circuit should not have upheld any part of Kacsmaryk’s ruling. As explained by Millhiser when the Supreme Court first overruled implementation of Kacsmaryk’s order,

The plaintiffs’ arguments in this case are laughably weak. They ask the Court to defy longstanding legal principles establishing that judges may not second-guess the FDA’s scientific judgments about which drugs are safe enough to be prescribed in the United States. Moreover, no federal court has jurisdiction to even hear this case in the first place.

          You will also recall that the doctor/plaintiffs in the case before Kacsmaryk had no standing to challenge the availability of mifepristone. They claimed that because some women might experience complications from mifepristone, their hospitals might become overcrowded, which might affect their ability to care for other patients. The string of speculative scenarios demonstrates that the doctors had no standing to bring the challenge in the first instance.

          The Fifth Circuit’s partial affirmance of Judge Kacsmaryk’s ruling highlights another reason for Democrats and Independents to defeat every Republican in a position to restrict the reproductive liberty of women: Republicans want nothing less than to outlaw all abortion nationally at every stage of pregnancy. That is the import of Judge Kacsmaryk’s ruling—even though his ruling is currently on hold until the Supreme Court is able to once again rule on Judge Kacsmaryk’s ludicrous order.

Follow up on fundraiser for 907 Imitative for Alaska.

          Thank you to everyone who supported the event Tuesday for the Alaska communications hub, the 907 Initiative. Two readers of this newsletter were inspired to offer a $4,000 match. Thank you!! Any help in meeting this match is greatly appreciated. Building this type of infrastructure is the type of strategic long-term investment that is especially effective and necessary to ensure representative, transparent government in Alaska. Donations can be made here: https://secure.actblue.com/donate/sc907?refcode=match 

Concluding Thoughts.

          I will return to the audio version tomorrow evening. I had planned to do so tonight, but the power went out at my eldest daughter’s house (because of the heatwave in L.A.), so we have unexpected visitors sleeping in every room in the house—including baby Gracie, who is currently occupying my library, where my sound recording equipment is located.

          In researching tonight’s newsletter, I searched prior newsletters. One of the “hits” was a newsletter I wrote on February 2, 2017, titled “Today’s “Buckle Your Seat Belts” Edition.” (You can see the evolution toward the name, “Today’s Edition” in that title!) Trump's presidency was two weeks old, and I wrote about Trump's attack on the “so-called judge” who stayed the immigration ban issued by Trump in his first week in office.

          In his second week in office, Trump was attacking federal judges. Six years later, he is still at it—but he has turned up the vitriol. It has been a long six years, and we have endured much—and prevailed. If we can beat Trump a second time (and we have every reason to believe we can), we will be done with him. As I wrote in my concluding thoughts on February 2, 2017, “Keep calm and carry on.” That is still good advice today!

Talk to you tomorrow!