Progress?

May 26, 2023

          As we head into the Memorial Day Weekend, let’s start with the good news on the debt negotiations before turning to other stories.

A debt deal?

          Reports of a potential deal on the debt ceiling grew increasingly optimistic throughout the day on Thursday. By early evening, the NYTimes reported that

lawmakers were closing in on Thursday on a deal that would raise the debt limit for two years while capping federal spending on everything but the military and veterans for the same period. . . . The deal taking shape would allow Republicans to say that they were reducing some federal spending — even as spending on the military and veterans’ programs would continue to grow — and allow Democrats to say they had spared most domestic programs from significant cuts.

          Negotiating a deal is a major step forward—especially one that would raise the debt limit for two years. Marshaling that deal through Congress is an independent hurdle. But let’s take this one step at a time. For now, we should be glad that negotiators are making progress.

          To be clear, the Republican establishment is still rooting for a default. The Chair of the Republican National Committee, Ronna McDaniel, boasted on Fox News that a default “bodes very well” for the Republican presidential field—a breathtaking comment that betrays cynical disregard for the American people.

Day 2 of DeSantis’s campaign: Promises to pardon Trump and January 6^th defendants.

          I continue to receive emails from readers worried about Joe Biden’s electability—a worry that ignores the crucial question, “Compared to whom?” One possible contender is Ron DeSantis, who signaled on his second day of campaigning that he would run to the right of Attila the Hun if need be. (Please, no emails from Attila the Hun fans. I made the comparison for humorous effect. I’m sure Attila was a swell guy with a few good points.)

          In a series of interviews on right-wing media platforms, DeSantis criticized Trump for being “soft on immigration” and promised to pardon Trump and January 6^th defendants who were (allegedly) unfairly treated by the DOJ. See UPI, DeSantis promises to be 'aggressive' in considering pardons for Jan. 6 rioters, Trump.

          DeSantis’s promise to “aggressively consider” pardoning January 6^th defendants came on the day that Elmer Stuart Rhodes (founder of the Oath Keepers) was sentenced to eighteen years in prison for seditious conspiracy. See HuffPost, Oath Keepers Founder Sentenced For Seditious Conspiracy Over Jan. 6 Capitol Riot.

          In siding with the January 6th defendants, DeSantis is staking out a position that is opposed by 68% of Americans who believe that prosecuting the January 6th defendants is “very important.” Of course, DeSantis is seeking the support of the 33% of Republicans who support the January 6th insurrectionists—a puzzling move that ignores the 59% of Republicans who do not support the insurrectionists.

DeSantis is backing himself into a very tight corner that will weaken him as a general election candidate if he beats Trump. If you are lying awake at night worried about Joe Biden, try to remember that DeSantis is chasing a minority of Republican voters to win the nomination.

          Regarding DeSantis’s promise to pardon Trump, 6 in 10 Americans believe that Trump should be prosecuted for his role in inciting the January 6th insurrection. They may get their wish. Read on!

New details strongly support criminal exposure for Trump in Mar-a-Lago documents case.

          The media is being flooded with “exclusive” tips about Trump's impending indictment in the Mar-a-Lago documents case. The source of the leaks may be Trump and his advisors, who routinely leak bad news in advance of public disclosures to take the sting out of the negative developments. On Thursday, Bloomberg News reported that

Special Counsel Jack Smith is wrapping up his investigation into former president Donald Trump’s refusal to return classified documents after his election defeat and is poised to announce possible criminal charges in the days or weeks after Memorial Day, according to people familiar with the matter.

          That revelation is consistent with the ham-fisted letter Trump sent to Merrick Garland earlier in the week demanding a meeting to discuss the investigation by Jack Smith. Such meetings are routine before indictments issue. So, there is a good chance Trump has been told he will be indicted soon and has been given the opportunity to dissuade Jack Smith from seeking an indictment.

          But revelations today in the Washington Post suggest that Jack Smith has a strong case against Trump for unlawfully retaining national defense documents and obstruction of justice. The Post reported that Trump employees moved classified documents out of a storage room after receiving a grand jury subpoena and then moved them back into the same storage room a day before telling the FBI it could view the documents. See WaPo, Trump workers moved Mar-a-Lago boxes a day before FBI came for documents. (This article is accessible to everyone.)

          The implication of the Post story is this: Trump took boxes of documents out of the storage room after receiving the subpoena, selectively removed documents, and then returned the boxes to the storage room to deceive the FBI about what documents Trump had in his possession. That inference is supported by the fact that when the FBI later obtained a search warrant, it found approximately 100 classified documents remaining at Mar-a-Lago.

          Separately, the NYTimes reported on disclosures from a sealed order by Judge Beryl Howell, who ruled on the DOJ’s claim that communications by Trump's attorneys fell within the crime-fraud exception to privilege (and could therefore by reviewed by the DOJ). See NYTimes, Mar-a-Lago Worker Provided Prosecutors New Details in Trump Documents Case. It appears that an anonymous source read the sealed order to a reporter for the NYTimes.

          Judge Howell’s order stated:

The government has proffered sufficient evidence that the former president possessed tangible documents containing national defense information [and] failed to deliver those documents to an officer entitled to receive them.

Notably, no excuse is provided as to how the former president could miss the classified-marked documents found in his own bedroom at Mar-a-Lago.

Other evidence demonstrates that the former president willfully sought to retain classified documents when he was not authorized to do so, and knew it.

          To recap: Trump reviewed the documents in his possession; selectively retained some of them; arranged for his lawyers to falsely tell the FBI that all documents had been returned; and when the FBI (and a private security firm) later searched Mar-a-Lago, classified documents were found in his desk and bedroom. There is no credible, innocent explanation for those facts.

          If Jack Smith secures an indictment of Trump in the next few weeks for espionage and obstruction of justice, Trump will again lose control over his fate—as he has in the Manhattan trial over his hush-money payments. Most importantly, the DOJ will protect the rule of law and the Constitution, both of which Trump has attacked and mocked.

          An indictment for espionage and obstruction of justice will be significant and historically important. The indictment should be welcomed by all Americans whose faith in our system of justice has been undermined by Trump's apparent ability to evade accountability. But it is not enough.

          Trump attempted to prevent the peaceful transfer of power as commanded by the Constitution and the will of the people. Indicting Trump for espionage is appropriate. Indicting Trump for attempting a coup is necessary.

 Justice Alito strikes again.

          The Supreme Court issued a ruling on Thursday that significantly narrowed the definition of “wetlands” subject to protection by the EPA. As a result, polluters will be able to spoil important natural resources free from EPA oversight. Alito’s non-sensical opinion was so bad that even Justice Kavanaugh abandoned the reactionary majority to side with the liberal justices. See Mark Joseph Stern in Slate, Samuel Alito’s indefensible assault on wetlands lost even Brett Kavanaugh.

          Per Stern,

On Thursday, the Supreme Court dealt a devastating blow to the nation’s wetlands by rewriting a statute the court does not like to mean something it does not mean. The court’s decision in Sackett v. EPA is one of the its most egregious betrayals of textualism in memory. Put simply: The Clean Water Act protects wetlands that are “adjacent” to larger bodies of water. Five justices, however, do not think the federal government should be able to stop landowners from destroying wetlands on their property.

To close this gap between what the majority wants and what the statute says, the majority crossed through the word “adjacent” and replaced it with a new test that’s designed to give landowners maximum latitude to fill in, build upon, or otherwise obliterate some of the most valuable ecosystems on earth.

[¶]

If you want to feel really cynical about the Supreme Court—if you want to see how a majority has an infinite number of tools at its disposal to override the words that Congress wrote and instead enshrine a conservative agenda into law—read Alito’s opinion in Sackett.

          The ugly details are chronicled in Stern’s article in Slate. The most important takeaway is that the reactionary majority are “textualists”—until they don’t like what the text says. Then they are freewheeling legislators accountable to no one. Expand the Court!

          Readers are up in arms over Justice Roberts’ mealy-mouthed defense of the Supreme Court’s ethics in a speech to the American Law Institute. I will return to this topic next week when I have more space and time. In the meantime, I urge you to watch the brilliant takedown of Roberts’ speech by Lawrence O’Donnell on MSNBC: Lawrence: Chief Justice Roberts reveals his shockingly shallow 'hardest decision'.

Join a Giving Circle to help Democrats in Virginia!

          Two days ago, I noted that Virginia is holding elections in June and November 2023. Groups across the nation are mobilizing to help Virginia Democrats win seats in the state legislature. One of those groups is The States Project / Giving Circles. Reader Ellie K. sent the following invitation to join the important work of Giving Circles:

In this election year of 2023, Virginia is teetering on the brink of a Republican rightwing trifecta, with 1 seat away from becoming the majority in the Virginia State Senate, 2 seats to keep the majority in its House of Delegates, and Gov. Glenn Youngkin not up for re-election until 2025. Virginia is another state with voting rights, women's healthcare, and LGBTQ rights on the line.  Primaries are on June 20, and the general election is on November 7.  

The States Project specializes in flips to restore and keep a Democratic majority in both state houses.  The States Project Giving Circles send 100% of our precious donor dollars to good Democratic candidates for their campaigns.  Like a school of fish engulfing a shark, our small donations add up to make a difference!  Check out the Tending to Democracy Giving Circle for more information, and to make a donation—even just $5.00!  Thank you for your support! Tending to Democracy | The States Project

Concluding Thoughts.

          MAGA extremists have dropped all pretense. Ronna McDaniel is gleeful over the prospect of a default on the nation’s debt. Ron DeSantis promises to pardon domestic terrorists. The conservative majority on the Supreme Court flips between using “textualism” and “judicial mood rings” based on their desired outcome. Legislators are abolishing abortion despite the will of strong majorities in their respective states. They don’t care about their transparent hypocrisy or manifest depravity. They have power; they want to keep it; they know they will lose it—soon.

          It is not your imagination. The level of performative cruelty and provocative ignorance among MAGA extremists is increasing daily. That is their plan and platform—to provoke soul-grinding outrage and exhaustion. But there is a glitch in their plan: They need our permission and acquiescence to secure our surrender. Do not give them your consent. Do not surrender.

          It would be silly to suggest that we can act as emotional automatons unaffected by MAGA’s intentional cruelty. People are being hurt, liberties are being deprived, dignity is being assaulted, and the right that is preservative of all others—voting—is being suppressed. We should feel anger and outrage in response to those assaults on our human rights. But our anger and outrage should be righteous and intentional. It should be directed and concentrated. It should be liberating and invigorating—not self-consuming and enervating.

          I am spending more time each day interacting with grassroots activists as I help to promote their good work. Their anger and outrage are increasingly daily—but so are their confidence and determination. We won’t win every election in 2023 and 2024, but the sea-change that started with Dobbs is continuing with each new abortion ban, anti-LGBTQ bill, voter suppression bill, and white nationalist shout-out from leading Republican candidates for president. We shouldn’t be cocky, but we should be confident. We are on the right side of history and the tide of reactionary hate has crested. I can feel it. I hope you can, too.

          I hope that everyone will take time over the weekend to honor the servants of democracy who have served in the armed forces to ensure our freedom. I will write briefly over the weekend to open the Comments section. If there are major developments, I will publish a special edition, as needed.

          Relax, renew, and recommit over the weekend. Talk to you on tomorrow.