Kevin McCarthy’s “devil’s bargain”

March 1, 2023

          In Kevin McCarthy’s desperate bid to become Speaker of the House, he made corrupt and depraved promises to friends and enemies alike, promises that now threaten to fray the fabric of democracy. One such promise was to release all surveillance tapes from the Capitol Hill complex on January 6^th. That promise was made to the Insurrection Caucus of the GOP, which claims that the assault on the Capitol on January 6th was a “false flag” operation rather than an attempt to overturn an election. The promise was part of a devil’s bargain—and McCarthy is intent on fulfilling his end of the bargain, “come hell or high water.” Literally.

          McCarthy’s opening gambit was to secretly grant access to Fox’s on-air entertainer Tucker Carlson, who is also a Big Lie promoter and January 6^th denier. Carlson was given unrestricted access to review the surveillance tapes at a private computer terminal at the Capitol so he could prepare a “special report” that would, presumably, demonstrate that the violent assault on the Capitol was just a big misunderstanding. After a week of outrage over the privileged access for Carlson and silence from McCarthy, the Speaker finally addressed reporters’ questions Tuesday.

          In answering reporters’ questions, McCarthy attempted to describe the special access to Carlson as an “exclusive story” that would eventually be made available to all media and the American public. In fact, McCarthy attempted to walk back the unrestricted access he had granted to Carlson and claimed that no video clips would be released unless and until they were reviewed by GOP Insurrection Caucus members. See The Hill, McCarthy, GOP pump brakes on release of Jan. 6 footage to Tucker Carlson.

          McCarthy denied that he had “promised” to release the surveillance video as a chit in his negotiations to become Speaker. GOP members to whom he had made that promise made a liar of McCarthy. As reported in The Hill,

          Some of those [GOP] critics said McCarthy had promised them, during the hard-fought Speaker’s balloting, that he would release the full library of Jan. 6 footage in return for their support. Carlson himself also suggested that McCarthy pledge to release the tapes to earn support for the Speakership.

          McCarthy’s decision to grant an “exclusive” to Tucker Carlson is especially depraved because Carlson has been an unrelenting critic of McCarthy for years. What better way to “buy” favorable coverage than to grant an “exclusive” to your biggest media critic?

          But it gets worse. Much. Now that the Insurrection Caucus has control of the surveillance video, they intend to grant access to the video to defendants charged with crimes arising from the January 6^th insurrection. See Politico, House GOP moving to let Jan. 6 defendants access Capitol security footage. Per Politico,

House Republicans are moving to provide defendants in Jan. 6-related cases access to thousands of hours of internal Capitol security footage, a move that could influence many of the ongoing prosecutions stemming from 2021’s violent attack.

Rep. Barry Loudermilk (R-Ga.), who chairs the House Administration Committee’s oversight subpanel, said that the access for accused rioters and others — which Speaker Kevin McCarthy has greenlighted — would be granted on a “case-by-case basis.”

          Defendants in the January 6th prosecutions are entitled to obtain exculpatory evidence from the government. But access to those materials must be granted in accordance with the Federal Rules of Criminal Procedure. Congress is not a party to those criminal prosecutions and should not meddle by granting unfettered access to irrelevant materials that can be used by insurrectionists to inflame and prejudice jurors.

          But it gets worse. Much. The member of Congress who will supervise access to highly sensitive surveillance tapes by January 6th defendants is Rep. Barry Loudermilk. You may recall Rep. Loudermilk because he was accused of giving tours of the Capitol on the day before the insurrection (January 5^th)—a day the Capitol was closed to the public. Loudermilk vehemently and indignantly denied that charge until the January 6th Committee released a video of Loudermilk giving tours of the closed Capitol to a group of people on January 5^th. See International Business Times, Republican Congressman Denied Giving A Capitol Tour To Rioters, New Video Evidence Shows He Did.

          McCarthy’s attempt at damage control asserts that he will give access to surveillance tapes to the American people at some point in the future. Of course, that begs the question of why he decided to give preferential and exclusive access to an insurrection denier (Tucker Carlson) and to January 6^th defendants before giving access to the American people. And it raises serious questions about why McCarthy appointed someone accused of giving reconnaissance tours of the Capitol to supervise access by insurrectionists to highly sensitive surveillance tapes of the Capitol.

          There are no innocent explanations in response to those questions. Kevin McCarthy can bob and weave all he wants, but the result is incontestable: Republicans in Congress have taken the side of those who mounted the violent insurrection on January 6^th—because Kevin McCarthy’s pathetic, shriveled ego would not be satiated until he became Speaker of the House, regardless of the damage inflicted on our democracy.

          What can we do about this outrageous state of affairs? We can attempt to influence public opinion against McCarthy and his co-conspirators. That may be more feasible than you think. Read on!

The value of sending “letters to the editor.”

          A reader posted a note in the Comments section of yesterday’s newsletter about his success in affecting the editorial position of the Minneapolis Star Tribune. The Star Tribune published a syndicated op-ed by Bret Stephens that falsely claimed the Cochrane metadata analysis “proved” masks were ineffective in preventing the spread of Covid. Stephens’ op-ed is entitled, “Truth unmasked, at last.” [I am not linking to Stephens’ op-ed because it promotes misinformation.]

          The reader—L. David Mech—wrote a letter to the editor of the Star Tribune that was published here: Readers Write: Benefits of masking. Mech criticized the Cochrane review by noting the fatal deficiencies in the analysis. Two days later, the Star Tribune published an editorial that noted the criticisms of the Cochrane review, pointed to evidence supporting the effectiveness of masks and offered the following advice: If you’re in a position of risk, wear an N95. See Editorial, Minneapolis Star Tribune, It’s still OK to think masks were a good idea.

          The Star Tribune’s editorial isn’t perfect, but it was a good faith attempt to offer a competing view to Bret Stephens’ gross mischaracterization of the Cochrane metadata analysis. Meanwhile, the criticism of the Cochrane study continues to pile up. See Thomas Pueyo’s blog on Substack, Uncharted Territories, Do Masks Work? Spoiler alert: They do!

          Reader L. David Mech wasn’t the only Star Tribune subscriber to send a “letter to the editor” regarding Bret Stephen’s misleading op-ed. But a fair reading of the sequence of events suggests that he and other subscribers caused the Star Tribune’s editorial board to reconsider its view of anti-masking claims.

          We can all follow David Mech’s example and seek to affect the editorial policy and content of newspapers and online news sources. It took a week for Kevin McCarthy to buckle (a bit) under criticism of his devil’s bargain with Tucker Carlson. Continued criticism may force him to back out of the deal entirely. Let your favorite news outlet know how you feel about McCarthy’s corrupt bargain!

Oral argument in Supreme Court regarding student loan forgiveness.

          The oral argument on the cases challenging Biden’s student loan forgiveness plan was a sorry spectacle on many levels. On a human level, it was maddening to listen to justices who have benefitted their entire lives from systemic unfairness that favored them lecture the US Solicitor General about the “unfairness” of loan forgiveness to those who have already repaid their loans.

As Gorsuch et al. know full well, life isn’t fair. That unfairness is why they find themselves sitting on the Supreme Court while more qualified judges and lawyers toil in relative obscurity because they did not have the right “connections” or resources to attend “elite” schools that thrive on nepotism-fueled endowments. For a recounting of some of the more egregious statements by the Justices, see The Hill, Student loan forgiveness: Key statements from each justice.

          There is a lot to discuss on the legal side of the arguments, but it is helpful to step back a bit to focus on the elephant in the room—the so-called “Major Questions Doctrine.” That doctrine will likely provide the rationale for overturning a congressionally authorized forgiveness of student loans.

The Major Questions Doctrine is a judge-made doctrine that effectively grants Supreme Court justices carte-blanche to overturn any executive order or administrative rule with which the justices disagree.

          Ian Millhiser explains the dubious origins and bad-faith abuse of the Major Questions Doctrine in Vox, The Supreme Court showdown over Biden’s student debt relief program. Millhiser’s thesis is, "The law is very explicit that Biden’s student debt relief program is lawful. The Court’s Republican majority is unlikely to care.”

          Millhiser explains why the Supreme Court will invalidate student loan forgiveness in one of the two cases heard by the Court on Tuesday. He writes:

As the Court has described this doctrine, Congress must “speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”. . . [T]he Heroes Act speaks in expansive terms about the secretary’s power to forgive student loans, but the Court has never fully explained just how clearly a statute must be written to survive review under the major questions doctrine. So, the justices could potentially deem to Heroes Act to be insufficiently clear and strike down the loan forgiveness program.

This doctrine, which was invented by the justices themselves, is not mentioned in the Constitution or in any federal statute, and the Court has never tried to claim that it is authorized by any particular law. To the contrary, at a recent appearance at Notre Dame Law School, Justice Brett Kavanaugh — a supporter of the doctrine — claimed that it is “rooted in constitutional values, and also our understanding of how Congress operates.”

The major questions doctrine, in other words, has no real substance. It largely functions as an excuse that the Court’s GOP-appointed majority can use to toss out agency actions that they do not like.

          Justice Kavanaugh, who insists that he is a “textualist” and “originalist” when striking down personal liberties like reproductive choice, claims the power to strike down executive or administrative actions based on “constitutional values” and his “understanding of how Congress works.” Huh??? What does that mean? As Millhiser notes, it means nothing; the Major Questions Doctrine is a word salad that empowers the reactionary majority to strike down any executive branch action they do not like.

          What’s the solution? The next time that Democrats control the House, the Senate, and the presidency, they must modify the filibuster to allow Congress to expand the Court to thirteen justices (at least). Congress can then expand the Court with a majority vote.

          But won’t Republicans do the same thing when (and if) they control both branches of Congress and the presidency? Of course, they will! But the fact that Republicans may retaliate is no excuse for allowing three decades of control by a reactionary majority hell-bent on destroying the organs of government and denying citizens liberties plainly protected by the Constitution. If we want to stop this runaway train, we must take bold action—or we deserve what we will get.

Concluding Thoughts.

          I have been heartened by the overwhelming response by readers eager to help elect Judge Protasiewicz to the Wisconsin Supreme Court. The strong interest by readers in a judicial election in Wisconsin is a sign of how far we have come in seven years. How many of us would have concerned ourselves with a judicial election for a supreme court seat in another state before 2016? Would we have donated money? Sent postcards? Called voters in another state encouraging them to vote? Canvassed in another state?

          The answer is “almost no one” would have engaged in those activities for a judicial election in another state. But the fact that hundreds (thousands?) of readers of this newsletter are eager to do so demonstrates that we have become aware of the importance of state-level elections to the national political landscape. It also demonstrates a dramatic increase in the personal commitment of millions of citizens who were “voters” before 2016 but now consider themselves “activists.”

          Yes, the challenges are greater than in 2016, but we are smarter, stronger, and more unified than we were seven years ago. Everyone should take heart from that fact and join the battle for the soul of America with a renewed sense of confidence and optimism. As always, we have every reason to be hopeful but no reason to be complacent!

          Talk to you tomorrow!