“Made-for-TV” special counsel report.

March 13, 2024

Joe Biden clinched the Democratic nomination for president with primary wins in Georgia and Mississippi. Biden continued his strong primary performance, garnering 93% of the vote in Georgia. (By comparison, Trump won 82% of the vote in Georgia, while former candidate Nikki Haley captured approximately 40% in Dekalb and Fulton counties.)

President Biden issued the following statement after clinching the nomination:

Four years ago, I ran for president because I believed we were in a battle for the soul of this nation. Because of the American people, we won that battle, and now I am honored that the broad coalition of voters representing the rich diversity of the Democratic Party across the country have put their faith in me once again to lead our party — and our country — in a moment when the threat Trump poses is greater than ever.

By comparison, as Trump inched closer to securing the GOP nomination, he was basking in the glory of a campaign ad created by Viktor Orbán to support Trump. (Not joking: see Viktor Orbán: "President Donald Trump was a president of peace.") It is illegal for foreign nationals to “directly or indirectly” make independent expenditures on behalf of any party to a US federal election.

It seems like this development deserves attention from the media and investigation by the Federal Election Commission, at the very least. Imagine if leaders of NATO produced slick videos praising President Biden and posted the videos to Twitter.  

While Tuesday's primary results may seem anticlimactic, Biden’s strength and normalcy continue to outshine the weirdness and incipient fascism of the Trump campaign. Biden has momentum, while Trump's campaign is struggling.

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Special counsel Robert Hur’s “made for TV” report is despicable.

In connection with special counsel Robert Hur’s testimony to the House Oversight Committee, the Department of Justice released the full transcript of President Biden’s testimony to the special counsel. Based on Biden’s deposition testimony, special counsel Hur wrote a slanderous report that claimed Joe Biden was “an elderly man with a poor memory.” The primary evidence for Hur’s slander was Biden’s alleged inability to recall the date of his son Beau’s death.

The transcript shows that Hur’s claims are despicable lies. In fact, Joe Biden volunteered the month and day of Beau Biden’s death—May 30. See Salon, “Can’t make it up”: Experts say transcript shows special counsel Robert Hur “lied” about Biden.

Per Salon,

“What month did Beau die? Oh God, May 30,” Biden said. When two others in the room chimed in with the year, Biden asked, “Was it 2015 when he died?” [¶¶]

“Hur's claim that Biden couldn't remember the day his son died was an outrageous lie,” argued Tommy Vietor, a former Obama staffer and commentator. “It's also cruel & irrelevant. Anyone who has experienced loss like that can remember images, smells, bit of conversations. The pain is burned into you. Dates blend together bc they're irrelevant.”

Attorney Andrew Laufer tweeted, “Hur lied. That’s really the only appropriate response.”

There were several dramatic (and damning) exchanges between Democratic representatives and Hur, including the following exhanges (with embedded video):

• Rep. Adam Schiff, who said, “What is in the rules is you don't gratuitously do things to prejudice the subject of an investigation when you are declining to prosecute. You don't gratuitously add language you know will be useful in a political campaign. You understood exactly what you were doing.”

• Rep. Eric Swalwell, noted that Hur described Biden as having a “photographic memory” during the deposition. Salon described the exchange as follows:

Swalwell: You said to President Biden, “you appear to have a photographic understanding and recall.” Did you say that?

Hur: Those words do appear in the transcript.

Swalwell: [Those words] never appeared in your report.

Hur: It does not appear in my report.

• Rep. Ted Lieu laid waste to Hur by simply reciting Trump's obstruction of justice and willful retention of documents and asking if Hur found that President Biden had engaged in any of those acts. Hur was repeatedly forced to acknowledge that Biden did not engage in any such activity—for which Trump has been indicted.

There is more—much. But the point is that Hur misrepresented the facts for political gain. The media lapped up Hur’s lies and slander without question. The revelation that Hur lied about and distorted Biden’s testimony is receiving a fraction of the media attention that Hur’s weaponized lies received in the first instance.

That outcome was predictable because Hur is a MAGA political partisan. Hur resigned from the DOJ earlier this week and showed up with private counsel to represent him in the Oversight hearing today. Hur’s lawyer (William Burck) previously sat on the board of directors of Fox Corporation and represented Steve Bannon in his criminal prosecutions. See Robert Hur will testify as private citizen with help from Trumpworld figures | The Independent. If Hur had any desire to appear impartial, hiring a former Fox Corporation director was not the way to do so.

Attorney General Merrick Garland could have avoided the predictable outcome of Hur slandering Joe Biden to assist Trump. Mark Joseph Stern captures the feelings of anger and outrage directed at Garland for his continued exaltation of the DOJ's reputation over the pursuit of justice. See Mark Joseph Stern in Slate, Robert Hur testimony: Merrick Garland to blame for anti-Biden lies.

Stern explains that the outcome was predictable:

For Hur, every incentive ran toward undermining Biden. If the president wins reelection, Hur will remain in exile (albeit at a lucrative law firm). If Trump knocks him out, Hur’s ascent continues apace. Somehow, Garland was unable to perceive the obvious truth that 100 percent of Hur’s interests lay in shivving Biden, not in sharing an honest account of his investigation with the public. . . .

Stern lays the blame directly at Garland’s feet:

Why did Garland appoint Hur? Because the attorney general has a fetish for bipartisanship and a deep, overwhelming desire to be admired by the American people. These dual fixations drive him to conflate the real world with The West Wing, presuming—wrongly and repeatedly—that he could win universal acclaim by appeasing Republicans. It won’t work.

Garland’s obsessive-compulsive desire to appoint only Republican special prosecutors to insulate himself (and the DOJ) from the “slings and arrows” of mean Republicans will backfire. As explained by Ian Millhiser,

I think that one lasting consequence of Merrick Garland's mismanagement of the Justice Department is that no Democrat will ever trust a Republican prosecutor to investigate any matter that touches on partisan politics, regardless of the circumstances. That's a pretty serious blow to DOJ credibility and institutional stature.

There are two takeaways from the entire sorry debacle:

First, we allowed Robert Hur to shake our confidence in Joe Biden instead of recognizing he was engaged in a choreographed hit job. Nothing is below MAGA extremists and Trump cultists. Do not forget that lesson—and do not doubt Joe Biden.

Second, the hearing was a dud because of Joe Biden’s commanding State of the Union address and the strong defense mounted by Democratic members of Congress, who continue to embarrass clueless Republicans.

The momentum has shifted. Biden is on offense and Trump is wooing foreign dictators and promising to cut Social Security and Medicare.

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Judicial Conference limits the ability of MAGA to use Judge Kacsmaryk as a private Rent-a-Judge.

Extremist Republicans devised a way to ensure that every challenge to a Biden administration policy is assigned to reactionary Judge Matthew Kacsmaryk in the Amarillo division of the US District of Northern Texas. (A “division” sits within a district; a district can have multiple divisions.)

Republicans managed their trick by assigning Kacsmaryk as the only judge in the Amarillo division—and then filing actions for national injunctive relief in the Amarillo division. Voila! The case is assigned to Kacsmaryk, the only judge in Amarillo!

The federal Judicial Conference has fixed the “Kacsmaryk loophole” by prescribing a rule that cases must be assigned randomly among all judges in a district if it seeks national injunctive relief. See Vox, The federal courts’ new “judge shopping” rules are a major blow to Republicans.

Per Vox,

According to the Judicial Conference, the new policy concerns “all civil actions that seek to bar or mandate state or federal actions.” It does not apply to all lawsuits, but it does apply to any in which the plaintiff seeks either a “declaratory judgment” saying that a federal or state policy is invalid or “any form of injunctive relief” changing such a policy.

In these cases, “judges would be assigned through a district-wide random selection process.” So, a case seeking to block a federal policy that is filed in Amarillo would be randomly assigned to one of the 11 active judges or one of the six senior judges who sit in that district. It would not be automatically assigned to Kacsmaryk.

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Republican majority in House shrinks to two votes.

The GOP majority in the House shrank to two votes on Tuesday, 218-213 (i.e., Republicans can suffer only two defections and retain a majority on any vote).  The latest loss was the abrupt resignation of GOP Rep. Ken Buck, who had already announced that he would not run for re-election. But Buck accelerated his departure on Tuesday by announcing he would leave Congress next week. See HuffPo, Rep. Ken Buck To Leave Congress Next Week.

Buck’s abrupt resignation also leaves Rep. Lauren Boebert in a bind. Boebert had announced that she would seek Buck’s seat in the regularly scheduled election in November 2024.

But because of the unexpected vacancy, Colorado’s governor has set a special election in June to fill Buck’s seat through the end of the current session of Congress. To run for Buck's seat in the special election, Boebert would need to resign from her current seat in Congress. Boebert’s resignation would create another vacancy in the House GOP caucus and require another special election. And, of course, Boebert might not win the special election for Buck’s seat—meaning that she would have resigned for nothing.

If you didn’t follow the above, you understand the situation perfectly—it’s all messed up. The GOP is a trainwreck.

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Concluding Thoughts

At our fundraising event today for Jeff Jackson (who is running for Attorney General of North Carolina), Jeff closed our meeting by giving advice about weaning ourselves from non-stop news consumption. Jeff invited us to engage in a thought experiment. Imagine that we went to sleep today and woke up one day before the general election on November 5, 2024. How long would it take for someone to summarize the important details we missed during our eight months of slumber?

Jeff suggested that it would take only three minutes to fill in the important details of the preceding eight months—and yet, left to our own devices, we will likely spend a couple thousand hours watching cable news during the coming eight months. Those thousands of hours could be spent more productively—learning a new language, developing a new hobby, relaxing in the garden, or helping to elect Democrats in 2024.

In the thought experiment above, Tuesday’s events would not likely be included in the three-minute summary. Of course, we know that now, but only with the benefit of hindsight. The Hur testimony could have been outcome-determinative—but it was not (because Hur lied). So, we face a conundrum: How do we know when to pay attention and when to turn away?

There are no easy answers, but it is safe to say that we can reduce our cable news consumption by a substantial margin and remain well-informed.

And, of course, you can avoid the cable news spectacle entirely and rely on commentators you trust to distill and interpret the news. That is the purpose of this newsletter, but there are many others on Substack and other platforms that serve as reliable guides to navigating a news ecosystem designed to frighten and provoke us into ever-greater consumption.

The “made for TV” report of Robert Hur is a perfect example. His report provoked anxiety and doubt. We had no control over the outcome. But Joe Biden and House Democrats did. And they were more than up to the task. We should have left the battle to those who were able to affect its outcome while we focused on more productive matters.

I get it. The stakes are immense, and it is difficult not to sweat every detail. But we should focus on those things we can control and let go of unnecessary anxiety. Of course, anxiety is understandable and unavoidable; there is no shame in it. But we cannot let it control or define us. And remember—action is the antidote to anxiety!

Stay strong!

Talk to you tomorrow!