Making sense of the news.
December 14, 2023
Wednesday brought many significant developments, each worthy of its own edition of the newsletter. So, rather than including extended discussion of each story, I will focus on the questions of “Why does this matter?” and “What is the likely outcome?” I will also link to sources that take a deeper dive into the various developments.
Big picture: Although some of the developments are worrisome or unsettling, on balance, they are testament to the progress that Democrats are making under difficult circumstances. And remember, we don’t have to win every battle, just enough of them—over time—to keep anti-democratic trends in check until we can reclaim all three branches of government. We are doing that—and more!
House Republicans authorize impeachment inquiry against President Joe Biden.
House Republicans opened a sham “impeachment inquiry” into non-existent crimes and misdemeanors allegedly committed by President Biden. The text of the resolution is here: House Resolution 918.
Why does this matter? Republicans realize that Trump's increasing legal jeopardy is a threat to his political viability. The Biden “impeachment inquiry” is a sign of Trump's weakness, not Biden’s culpability.
It also matters because opening the inquiry forced vulnerable Republicans to support an impeachment inquiry that is opposed by a majority of independent voters. In short, the inquiry increases the likelihood that Democrats will retake the House in 2024.
What is the likely outcome?
The House probably will not pass articles of impeachment. See above (bad idea politically heading into 2024). More to the point, Democrats have made fools of Republicans in the House Oversight hearings into Joe Biden. Democrats would continue to outclass and embarrass Republicans in formal impeachment hearings.
But if Republicans do send Articles of Impeachments to the Senate, Republican prosecutors will once again be embarrassed before a national audience—and the Senate will never vote to convict Joe Biden.
More to read: See The Guardian, Biden condemns impeachment inquiry: ‘a baseless political stunt.” (Hmm. . . shades of my newsletter headline yesterday, “A stunt impeachment inquiry.” Also, watch the powerful statement by Hunter Biden as he appeared outside the Capitol to condemn the Republican inquiry. See WaPo, ‘I am here’: Hunter Biden makes a defiant appearance. (Accessible to all.)
Trump's Criminal Trials and Appeals.
The D.C. Circuit Court of Appeals granted Jack Smith’s motion for an expedited appeal.
Why does this matter? Under the order expediting the matter, briefing will be completed by January 2, 2024. Trump must file his substantive brief on December 23, 2023 (after whining that his attorneys should not be forced to work over the Christmas holiday). That brief will be Trump's brief “on the merits” in the subsequent appeal to the Supreme Court—giving Jack Smith advance copies of Trump's briefing in the Supreme Court. The D.C. Circuit effectively put the briefing to the Supreme Court on a fast track. A super-duper fast track.
What is the likely outcome?
The D.C. Circuit will rule against Trump in early January, setting up the Supreme Court to affirm the D.C. Circuit’s ruling in February.
It is possible, but not likely, that the Supreme Court will tell the D.C. Circuit to stand down so the Supreme Court can hear argument without a layover in the court of appeals.
Either way, it appears that Jack Smith is going to get his expedited ruling on Trump's defense of presidential immunity.
More to read: See Trump's brief in which he opposed the expedited review by the D.C. Circuit—which serves as a preview of what he will file in the Supreme Court on December 20, 2023. The brief has been widely mocked for comparing Jack Smith to the Grinch who stole Christmas. President Trump’s Opposition to Motion for Expedited Appellate Review. (See page 14 for the citation to Dr. Seuss.)
The Supreme Court granted review of a legal challenge by January 6 defendant to charges that he “obstructed an official proceeding.”
Why does this matter? Jack Smith and DC prosecutors have charged 300 insurrectionists (including Donald Trump) with violating a statute that criminalizes “obstruction of an official proceeding.” Two of the four counts in the D.C. election interference indictment relate to the “obstruction of an official proceeding” statute. The fact that the Supreme Court granted review of the challenge by a January 6 defendant suggests that at least four members of the Court have doubts about the applicability of that statute to the assault on the Capitol.
What is the likely outcome?
The use of the “obstruction of an official proceeding statute” has been previously upheld by judges at the trial and appellate level. The Supreme Court’s grant of review raises some doubt as to the earlier opinions affirming the applicability of the statute.
Even if the Supreme Court rules that the “obstruction of an official proceeding” statute does not apply, Jack Smith still has two unrelated counts in the D.C. indictment that will go to trial in 2024.
More to read: Lucian K. Truscott IV has written a clear and accessible analysis of the implications of the grant of review. The Supreme Court goes fishing (substack.com). If are a non-lawyer, (congratulations!) start with Truscott’s article. If Joyce Vance publishes something (she hasn’t yet), read that too. If you want to take a really deep dive into the statutes in the indictment, read Trump Jan. 6 Indictment: The Statutes | Lawfare (lawfaremedia.org)
3. Judge Chutkan stays proceedings in D.C. election interference case pending appeal.
Why does this matter? Judge Chutkan issued an order staying trial proceedings in the D.C. election interference case pending review by the D.C. Circuit and/or the Supreme Court of Trump's presidential immunity defense. See Judge Chutkan’s order here: US v. Trump | Opinion and Order | 2023-12-13. Importantly, Judge Chutkan reserved the question of whether she would delay the commencement of the trial.
What is the likely outcome?
The potential delay of trial will depend on how long the D.C. Circuit and/or Supreme Court take to rule on Trump's appeal relating to his presidential immunity defense.
If I were forced to predict an outcome, I would guess that trial may be delayed 60 days—but will take place in mid-2024.
More to read: Judge pauses Trump’s Jan. 6 case amid appeal to toss it | The Hill
Supreme Court Grants Review of Mifepristone Availability After Dobbs.
Why does this matter? A reactionary federal judge in Texas revoked FDA approval for Mifepristone, effectively imposing a nationwide ban on a drug used to induce abortions. The Supreme Court intervened by staying the trial judge’s order until the Supreme Court has the opportunity to rule on the merits.
What is the likely outcome?
Per Mark Joseph Stern and Dahlia Lithwick, “there is good reason to believe that a majority of justices will [rule] that the plaintiffs had no business suing in the first place.” Such a ruling would simply defer an ultimate decision on the availability of Mifepristone until after the 2024 election—effectively allowing Republicans to dodge another unpopular ruling on abortion.
More to read: Stern and Lithwick in Slate, The Supreme Court takes on abortion again. It won’t end well and Center for Reproductive Rights, Supreme Court Will Hear Case that Could Undermine Abortion Pill Access Nationwide.
Senate Passes Defense Funding Bill.
Why does this matter? At least one chamber of Congress is functioning. The Senate passed a defense funding bill devoid of the culture war issues—including access to abortions and elimination of so-called “woke” practices—that GOP reactionaries in the House are demanding.
What is the likely outcome?
Who knows? Possibilities include (a) a government shutdown, (b) removal of Mike Johnson as Speaker of the House, or (c) mass resignations and discharges from the military as enlisted personnel are denied salaries for months.
More to read: Senate OKs compromise defense bill without culture war measures - Politico.
COP28 Issues Statement Calling for Reduction of Fossil Fuels.
Why it matters. The UN climate conference (COP28) issued a statement that called for “transitioning away from fossil fuels in energy systems” and “phasing out fossil fuel subsidies.” No prior climate conference had explicitly called for moving away from fossil fuels. The reference to fossil fuel reductions was both hailed as a breakthrough and criticized as meaningless posturing.
More to read: 3 wins and 3 losses at COP28 UN climate conference in the UAE - Vox and 350.org, COP28: Communities hold the line as outcome delivers a loophole-ridden text.
Biden’s Public Tension with Netanyahu.
Why it matters. The public disagreement between Biden and Netanyahu on Tuesday over Israel’s military tactics in Gaza was the most significant break between the two leaders. The competing statements suggested that behind-the-scenes negotiations were more tense and difficult than previous public statements suggested.
The likely outcome.
Pressure from the US to switch tactics from bombing to commando style combat will ultimately prevail in the next few weeks.
More to read: Josh Marshall of Talking Points Memo published a “must-read” article on high-level, military-to-military talks at the Pentagon pressuring the IDF to switch “in the next couple of weeks” from bombing campaigns to “low intensity commando raids focused on killing or capturing Hamas militants and destroying the Hamas tunnel network.” See Beneath the Headlines in Gaza, Tel Aviv and DC.
Opportunity for Reader Engagement.
I received this note from Aaron Frank of Focus for Democracy:
Please join Focus for Democracy for its final event of 2023 this Sunday, Dec 17th at 5pmPT/8pmET. This event is about driving early money to evidence-based programs that that are poised to generate the most votes in 2024. Plus, a generous donor has offered to match ALL pledges from this event! Opportunities will be presented that let your year-end giving have an outsized impact on next year’s election.
Concluding Thoughts.
Writing tonight’s newsletter highlighted the fact that there is A LOT happening in America (and beyond). But despite dozens of major political crosscurrents and overlapping crises, America is stable and prosperous (compared to other industrialized nations). The courts are working. True, Congress seems able to act only when a crisis of its making is hard upon us, but we have yet to default on our debt or experience a lengthy shutdown. And although many people disagree with US foreign policy, at least we have a coherent foreign policy capable of being criticized (and, therefore, changed).
Why does it matter that America is stable and prosperous during such frenetic, turbulent times? Because that stability is directly attributable to Joe Biden and the Democratic Party. I shudder to think how the US would be coping if the former guy had been reelected and was facing half of the international and domestic crises Biden is handling with skill and confidence today.
What is the likely outcome? Biden wins in 2024—because deep down, people know what America would be like under the chaos-driven, disordered mind and personality of Trump. And they also know deep down that the good things happening in their lives are directly attributable to Joe Biden’s careful stewardship of the economy and foreign policy—whether they want to admit it to pollsters or not.
Talk to you tomorrow!
More good (surprising) news: The House passed the defense appropriations bill on Thursday morning without the "culture war" provisions demanded by the Freedom Caucus. Although there was strong bipartisan support for the bill, a majority of the support came from Democrats (again)--proving that the House is effectively governed by the minority party! To say the least, the Freedom Caucus is upset.
Some days I find myself trying to decide who aggravates me the most. (Usually it’s Mike Johnson. I would be in favor of his removal just for the sake of my blood pressure, though I don’t know who they will tee up next.) On good days I try to focus on who encourages me the most. This week I felt like Jack Smith made a genius move, and Liz Cheney, with whom I have zero in common on policy, is showing us 100 percent determination in her message of Trump Cannot Be President and Republicans Cannot Be Trusted with the Constitution, and I appreciate that persistence.