Overcoming the angle of repose.

April 13, 2023

          Update: Alvin Bragg's lawsuit. Yesterday's newsletter may have undersold Alvin Bragg's lawsuit against Jim Jordan. I wrote, "Enjoining Congress is a heavy lift—especially before a judge appointed by Trump." As reader TCinLA noted in the Comments section of yesterday's newsletter,

Unlike most of the "Trump-appointed judges," the judge Bragg is dealing with has a solid legal reputation from all who know her, and while she turned down the immediate TRO (as most judges would), she directed Jordan be served immediately and reply by Monday for a hearing Wednesday. Don't sell her short for the appointing power; she appears to be a "good one" who snuck through.

          And it is not quite accurate to say Bragg is seeking to "enjoin Congress." The actual relief sought in the complaint is narrow—an injunction against the subpoena issued to Mark Pomerantz (a former Manhattan prosecutor). Bragg also asks for other relief that "declares" the parties' respective rights, which is a less aggressive form of relief. He might just get it.

          Amazingly . . . Jim Jordan is now sending fundraising emails based on Bragg's lawsuit. A reader forwarded one of the emails, which says,

[T]he same District Attorney who is using his prosecutorial power to destroy Joe Biden's likely opponent HAS JUST SUED ME! 

He wants to intimidate us! 

That's right – instead of fighting actual crime in New York City, Alvin Bragg appears to be using federal tax dollars to target Trump. And now he's targeting me! 

But what Bragg or other Soros-backed liberals might not know about me: I've squared off against MUCH bigger and tougher opponents in my career. I didn't back down then . . . and I'm not backing down now! 

          So, poor little Jim Jordan won't back down against "big bad Alvin Bragg's" lawsuit—if you just send him enough money to stiffen his spine!

          Jim Jordan is taking his "Weaponization" committee hearings on the road next week—to Manhattan! That just sounds like a bad idea, doesn't it? What could go wrong? For a preview of the "Bronx cheer" awaiting Jordan, see Dennis Aftergut in The Bulwark, Jim Jordan Takes His Clown Show on the Road. As Aftergut notes, contrary to popular belief, not all publicity is good—and it is showing in Trump's favorability ratings.

          At the very least, Jordan's "NY Roadshow" will increase the number of proceedings in New York and Delaware relating to Donald Trump that will dominate the airways next week. Those include the Weaponization hearing directed at the Manhattan indictment, the Dominion lawsuit against Fox News, and the E. Jean Carroll rape/defamation case. The wheels of justice grind slowly but exceedingly fine!

Justin Pearson is reinstated to the Tennessee legislature.

          The humiliation of Tennessee Republicans is now complete: The Shelby County Board of Commissioners voted 7-0 to reinstate Justin Pearson to his seat in the Tennessee assembly. Pearson gave an electric speech after he was reinstated. A video is embedded in this article, Talking Points Memo, With Unanimous Vote In Shelby County, Both Expelled Dems Have Been Returned To Tennessee House. (I would appreciate it if a reader is able to locate a better version—both camera angle and audio—and post a link in the Comments section.)

          As Senator Raphael Warnock observed on MSNBC on Wednesday evening, Justin Pearson and Justin Jones are the same age as Dr. Martin Luther King, Jr.—27 years old—when Dr. King began his civil rights activism. Dr. King's journey began when a fifteen-year-old girl (Claudette Colvin) was arrested for refusing to give up her seat to a white person as required by Jim Crow laws in effect in Montgomery at the time. Nine months later, the incident repeated itself—with Rosa Parks—and the rest is history.

          The blunder of Republicans in Tennessee has elevated the voices of Justin Jones and Justin Pearson to national prominence. Indeed, Justin Pearson just published an op-ed in the New York Times, Defiant and Determined, I'm Ready to Keep Fighting for Tennessee. (This article is accessible to all.)   Pearson writes, in part,

I wasn't elected to be pushed to the back of the room and silenced. We who were elected to represent all Tennesseans — Black, white, brown, immigrant, female, male, poor, young, transgender, and queer — are routinely silenced when we try to speak on their behalf. Last week, the world was allowed to see it in broad daylight.

          It is a privilege to witness the birth of new leaders who will carry the fight for social justice forward long after we are gone.

Joe Biden's trip to Northern Ireland.

          Meanwhile, in the part of the universe that does not revolve around MAGA extremism and Trump's corruption, President Joe Biden just completed a highly successful visit to Northern Ireland. That outcome was far from assured, and—by all reports—Biden and his team navigated a difficult political environment in Northern Ireland. As background, the political parties in Northern Ireland have been unable to form a government for more than a year (because of Brexit complications), leaving a caretaker administration in place.

          But Biden was able to meet with all sides in Northern Ireland's political world and deliver remarks that were generally well-received. He avoided intractable issues and focused on the economic future of Northern Ireland—something everyone wants to promote. All in all, it was a deft diplomatic performance.

          For a detailed discussion of the choppy political waters in Northern Ireland and Biden's skillful navigation of the issues, see Politico, Why Joe Biden's whirlwind trip to Belfast went better than it looked.

Dominion lawsuit against Fox News.

          After our brief foray into lovely Northern Ireland, let's return to the meltdown at the center of Trump's world, a.k.a. the Dominion Voting Systems v. Fox News lawsuit in Delaware. Going into a major trial is like entering a blast furnace—weak points melt, debris incinerates, and all that is left is the unalloyed truth. It can be a painful process—and usually is. Unfortunately for Fox, in the lawsuit brought by Dominion, the truth is stacked on the Dominion side of the ledger, meaning that Fox News's case is going up in flames.

          Fox News and its attorneys have lost all credibility with the judge. On the eve of trial, Dominion continues to produce information from third parties that is in the possession of Fox News and should have been produced in discovery by Fox—but was not. See The Hill, Judge sanctions Fox News for withholding evidence in Dominion lawsuit.

          That is a very bad development for Fox on the eve of trial. The judge has appointed a special master to determine if Fox or its attorneys made deliberate misrepresentations to the court. And the Court has issued sanctions against Fox, requiring it to pay for additional depositions and discovery demanded by Dominion.

          Here's the point: Like Trump, Fox News assumed that it could get away with bending the truth because no one would hold it accountable. It now finds itself in a trial where truth matters, and representations to the judge cannot be treated like fact-free commentary from Tucker Carlson.

          It is a healthy process for the leadership of Fox to see that their disregard for truth and journalistic standards can affect the bottom line. Shareholders have now filed a lawsuit in Delaware against the Fox Board of Directors for breaching their fiduciary duty in failing to prevent the dissemination of false information. NBC News, Rupert Murdoch and Fox Corp. board members sued by investor over 'stolen election claims'.

          Whatever else happens, there is an internal reckoning occurring at Fox that will remove editorial control from the hands of Rupert and Lachlan Murdoch and put it in the hands of oversight committees, editors, and compliance officers. The Dominion Voting Systems lawsuit should have a positive effect on journalism in America, no matter the outcome.

More on Judge Kacsmaryk's decision.

          Many commentators, including me, have referred to Kacsmaryk's opinion as a "religious screed." What do we mean by that? Here, it means that Kacsmaryk has substituted religious theology for legal doctrine. For example, one reason offered by Kacsmaryk in support of his withdrawal of the FDA's authorization of mifepristone is that "Pregnancy is not "an illness." See Vox, The most disingenuous argument in the case against abortion pills.

          The argument that "Pregnancy is not an illness" is a religious talking point in a syllogism that goes as follows: The FDA can only approve drugs to treat illness; pregnancy is not an illness; therefore, the FDA cannot approve a drug to terminate pregnancy. Indeed, Judge Kacsmaryk lifted the argument from the briefs of the Alliance Defending Freedom, the organization that was created for the sole purpose of bringing the lawsuit before Judge Kacsmaryk.

          Here's the problem with the argument—and with Judge Kacsmaryk's adoption of it: The authority of the FDA is not limited to approving drugs that treat illnesses. The FDA is authorized to approve anything that affects the "structure or function" of the human body. Moreover, regulatory interpretation has defined illness to include a "medical condition." Is a broken ankle an "illness?" No, but it is a medical condition, and the FDA has the authority to approve drugs and devices that help promote the healing and fusion of bones.

          The point is that the argument "Pregnancy is not an illness" is both irrelevant and demeaning. It is a medical condition that affects the structure or function of the human body, and drugs that affect it are within the FDA's regulatory purview. But Judge Kacsmaryk made certain to give airtime to the religious talking point that has no legal bearing on the outcome of the case—but can be used to sow confusion and misunderstanding from pulpits and talk shows across the nation.

Concluding Thoughts.

          Small acts of resistance by Claudette Colvin and Rosa Parks were grains of sand that changed the angle of repose of segregation in the Jim Crow South. Their actions toppled three generations of laws, rules, and "customs" piled on the shoulders of Black citizens denied liberties guaranteed by the Constitution.

          So, too, with the small demonstration in the well of the Tennessee assembly last week by Justin Jones, Justin Pearson, and Gloria Johnson. Their acts of resistance have set in motion grains of sand that dislodge others nearby, which in turn dislodge others . . . .

The chain reaction has begun. The movements will be imperceptible at first but—once started—are unstoppable. One small act of resistance by a single person is all that is necessary to overcome the angle of repose of decades of discrimination and injustice. Justin Pearson. Justin Jones. Gloria Johnson. You.

          We are watching history unfold and repeat itself as news leaders arise to lead the next generation. Our hearts should be glad and filled with hope!

          Talk to you tomorrow!