Starting the year on a high note!

January 2, 2024

Happy New Year, everyone! 2024 will be a momentous year—and we have every reason to be confident as we begin the march to the November elections. While everyone is understandably focused on the presidential election, we must remember that every election matters! We have learned the hard way that having responsible public officials at every level matters—school boards, local election officials, sheriffs, judges, city councils, and state legislators. State and local officials have a significant impact on our ability to enjoy the full promise of the Constitution.

As we head into a hard-fought election year, let’s remember that many groups will be attempting to manipulate us by manipulating how the news is reported. Don’t succumb to disinformation. Trust your instincts—if something seems unlikely or unbelievable, it deserves further scrutiny before acceptance.

The post-Christmas, pre-New Year news cycle was a bit scattered, so I will pick up some threads that are a few days old and did not receive much attention. I start with hopeful / helpful stories readers forwarded to me over the weekend.

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Re-calibrating our sensors heading into 2024.

Making predictions is difficult, especially about the future.

Some media outlets are busy making predictions about how bad 2024 will be. Don’t believe them. Experts have been predicting a recession for two years. A recession could occur, but if you predict a recession continuously for years, sooner or later you are bound to be right. Experts then take credit for “being right,” while ignoring the years during which they were wrong!

The New York Times fact-checked itself by examining its predictions over the last century-and-a-half. See NYTimes, Predictions from the Past. (Accessible to all.) In short, the Times has been spectacularly wrong about most things—including its confident predictions that (in January 1861) the nation would avoid a Civil War, that Apple would never release a cell phone, and that Nelson Rockefeller would defeat Lyndon Johnson in the 1968 presidential election (neither became a nominee for their party). So, pay no heed to the onslaught of predictions for 2024. Instead, devote your energy to achieving the outcome you want!

2023 brought improvements in childhood poverty, mortality, and literacy.

Nicholas Kristof took a look at the positive developments in 2023—which occurred in the midst of suffering that dominated the headlines. See NYTimes, This Was a Terrible Year, and Also Maybe the Best One Yet for Humanity. (Accessible to all.)

As Kristof notes, childhood mortality and poverty decreased across the globe in 2023. Polio and Guinea worm disease have nearly been eradicated. A cure for sickle cell anemia has been approved in the US (thanks to the CRISPR gene editing technology). A vaccine for R.S.V. became commercially available. Literacy rates are increasing throughout the world.

The positive developments are difficult to discern because they relate to things that didn’t happen. Of course, the fact that average rates of poverty, mortality, and literacy are improving does not ease the pain of those still afflicted by suffering. But it is important to recognize that even in the midst of widespread suffering, the world is making progress—a hopeful sign that should encourage us to redouble our efforts to improve the lives of children and families living in poverty.

Five reasons not to freak out about 2024.

A reader sent a note with a link to the Seattle Times, 5 reasons not to freak out (so much) about 2024. Included on the list are (a) Trump’s historical levels of support (which are likely a ceiling) are not enough to win in 2024; (b) election denialism is a proven loser; (c) taking away civil rights is a proven loser; (d) the GOP is trying to back away from Trump (slowly, so no one notices), and (e) elections are binary—democracy or tyranny, Biden or Trump, tolerance or bigotry. When voters must make a choice between two real options—rather than hypothetical choices in a survey—they make the right choice (on average).

Ten accomplishments of Joe Biden in 2023.

Democracy Labs published a list entitled 10 Incredible Things President Biden Accomplished in 2023. The infographic is eye-catching, to-the-point, and shareable. If you find yourself looking for an easy way to share Biden’s accomplishments, bookmark this list. Better yet, ask Democracy Labs to help your organization (for free) to produce materials with free tools that will help you communicate to your volunteers and your target audience.

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Developments in criminal cases against Donald Trump

There is a lot going on in the election interference case against Trump. Upcoming deadlines include the following:

• January 2, 2024—Trump files reply brief in D.C. Circuit Court of Appeals, and

• January 9, 2023—oral argument on Trump's appeal of the order denying dismissal based on his presidential immunity defense.

There has been a surprising development in Trump's appeal to the D.C. Circuit. Let’s start there.

“Friend of the court” brief argues that Trump is not permitted to appeal order refusing to dismiss case on presidential immunity grounds.

What happened. Last week, an advocacy organization--American Oversight—filed a “friend of the court” brief that argued Trump is not entitled to appeal from Judge Chutkan’s order refusing to dismiss the election interference case on grounds of presidential immunity. The brief is here: American Oversight Amicus Brief in Support of Dismissal for Lack of Jurisdiction - U.S. v. Donald Trump.

Why it matters. It is possible that the arguments advanced by American Oversight might win the day—resulting in a criminal trial of Trump in June 2024 (or thereabouts). If you find the discussion below too complicated or difficult, no worries! I strongly suspect we will be revisiting this issue in future editions of the newsletter. Just being familiar with some of the key concepts is enough for tonight.

Background concepts. Let’s start by talking about which orders and judgments are appealable. The general rule (with exceptions) is that parties may appeal only final orders and judgments. Usually, an order denying a motion to dismiss a case is not appealable. (A non-appealable order is called an “interlocutory” order—a fancy way of saying the order is not “final.”)

The arguments made by American Oversight. Trump and Jack Smith have proceeded on the assumption that Chutkan’s order is appealable even though it was “interlocutory.” But American Oversight filed a brief that convincingly argues that Trump is not entitled to appeal Judge Chutkan’s interlocutory order. American Oversight relies on binding Supreme Court precedent to support its position.

American Oversight writes in its brief:

This Court should dismiss this appeal for lack of jurisdiction. Under controlling Supreme Court precedent, an interlocutory order denying immunity in a criminal case is not immediately appealable unless the claimed immunity “rests upon an explicit statutory or constitutional guarantee that trial will not occur.” . . . . The Supreme Court has identified only two constitutional guarantees against trial that satisfy this demanding standard: the Double Jeopardy Clause and the Speech or Debate Clause.

On their face, Mr. Trump’s arguments do not rest upon any explicit constitutional guarantee against trial. Instead, he asserts immunity under structural constitutional principles and an unstated negative implication of the Impeachment Judgment Clause. Because neither claim “rests upon an explicit . . . guarantee that trial will not occur,” this Court lacks appellate jurisdiction. The Court should dismiss this appeal immediately and remand for trial without further delay.

American Oversight also argues that Trump's reliance on the Impeachment Clause does not create an exception to the rule against interlocutory appeals:

Mr. Trump’s invocation of “double jeopardy principles” implied by the Impeachment Judgment Clause similarly fails Midland Asphalt. An order denying a defendant’s claim under the Double Jeopardy Clause is appealable as a collateral order because that clause’s text contains an “explicit . . . guarantee that trial will not occur.” . . . The Impeachment Judgment Clause contains no such guarantee. And Mr. Trump expressly disclaims reliance on the text of the Double Jeopardy Clause itself.

Here's the point. The takeaway is that there is strong reason to believe that the D.C. Circuit will dismiss Trump's appeal quickly—and that the Supreme Court will deny review. That will put Trump's case back on track for a trial in the summer of 2024.

Although we should not look to the criminal trials to solve the political problem of a second Trump presidency, any development that keeps Trump's criminal problems “in the news” will encourage some independent voters to abandon Trump. In an electorate that is closely divided, marginal differences matter—a lot. So, the good people at American Oversight have made an important contribution to preserving democracy in 2024 and beyond!

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Tim Snyder reflects on the “let the people decide” response to the Colorado and Maine decisions that Trump is not qualified to appear on the ballot.

As I noted last week, many politicians responded to the Colorado and Maine decisions to keep Trump off the ballot by saying, “Let the people decide.” I wrote that such a response amounts to a “Trump exception” to the Constitution—motivated by fear of violence by his supporters. Professor Timothy Snyder wrote a much more eloquent and thoughtful response in his essay on Substack. See Timothy Snyder, Thinking About . . . .” The Pitchfork Ruling.

Professor Snyder writes,

In advising the Court to keep Trump on the ballot, political commentators elevate their own fears about others' resentment above the Constitution.  But the very reason we have a Constitution is to handle fear and resentment.  To become a public champion of your own own fears and others' resentments is to support an insurrectionary regime.

The purpose of the insurrection clause of the Constitution (the third section of the Fourteenth Amendment) is not to encourage insurrections!  If we publicly say that that Supreme Court should disregard it because we fear insurrections, we are making insurrections more likely.  We are telling Americans that to undermine constitutional rule they must only intimate that they might be violent. [¶¶]

In short, if politicians say, “Let the people decide,” when the Constitution says otherwise, they are supporting “a transition to authoritarianism.” The people should decide—except where the Constitution has already spoken—as it has here.

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What to expect when Congress returns.

Congress is scheduled to reconvene on January 8 (Senate) and 9 (House). Members of Congress face a daunting task of passing seven spending bills before February 2, 2024. (The number of bills might be more or less, depending on how Congress combines bills for passage.) Any way you look at it, that is a LOT of work to get done by February 2.

As explained in The Hill, there are four solutions to the challenge faced by Congress. See The Hill, 4 ways the government funding fight could play out in January.

Per The Hill, the possible solutions include:

• Congress passes eleven separate appropriations bills, and the government remains open.

• Congress passes short-term “continuing resolutions” that keep the government open at last year’s spending levels.

• Parts of the government shut down—depending on which spending bills Congress passes.

• Congress passes an “omnibus” appropriations bill that has a “top line” spending number for government operations for 2024.

None of the above options will be easy for newly elected Speaker Mike Johnson to achieve. Although he was elected with support from the GOP Freedom Caucus, Speaker Johnson immediately supported two actions that were opposed by Freedom Caucus members—

(a)  He passed “clean” continuing resolutions to keep the government open until February 2, 2024, and

(b)  He supported a Defense appropriations bill that omitted the “culture war” provions demanded by the most extreme members of the House GOP.

Over the holiday break, Rep. Marjory Taylor Greene harshly criticized Mike Johnson for those moves, calling his Speakership voting record “terrible.” See The Hill, Marjorie Taylor Greene creates multiple headaches for new Speaker.

During the interview with The Hill, Greene said,

He went from having a voting record to literally a month later . . . going against his own voting record and being Speaker of the House. Literally all of a sudden talking about doing things that he had literally voted against only a month before that. And, you know, that was unacceptable to me, and it still is.

Mike Johnson comes in and first thing he starts talking about is passing another CR, and I'm like, wait a minute, what? You just voted against it. That was the whole reason why Kevin McCarthy got ousted, was working with Democrats and passing a clean CR. And you know, for me I was like, what a hypocrisy!

Greene’s criticisms are significant because she supported Mike Johnson in the bruising Speakership fight last October. If she has soured on him over two votes (the October continuing resolution and the Defense appropriations bill passed in December), she will likely have plenty of additional reasons to be unhappy with him in January—as will her fellow malcontents in the GOP extremist wing.

The GOP infighting will be harmful to the American people if it results in a partial government shutdown in February. As he did in October and December, House Minority Leader Hakeem Jeffries may once again need to save the American people from the GOP’s inability to govern.

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Concluding Thoughts.

I hear from readers every day who are anxious about Biden’s standing in the polls, his alleged mishandling of the “crisis at the border,” his support for Israel, his failure to bring down the cost of groceries, and other issues that are laid at his feet because he is president.

While it is the unavoidable burden of all presidents to assume responsibility for issues and outcomes over which they have no control, it is a mistake to dwell exclusively on the challenges facing Joe Biden.

Republicans control the House and have not been able to pass a single substantive bill in this session of Congress without the majority support from Democrats.

Mike Johnson is hanging on by a narrow margin and has highly visible members of his caucus openly criticizing him before he has tackled the toughest part of his job.

And, while I won’t go into details, Trump is demonstrating signs of an emotional breakdown on Truth Social.

So, let’s stop ascribing superpowers and military-like discipline to the GOP. The Republican Party is a hot mess and a caricature of a dumpster fire.

The Democratic Party has problems, but they are problems inherent in being a party that is tolerant, welcoming, and passionate about making people’s lives better. Of course, Democrats will have disagreements—but they are disagreements over policy, priorities, and tactics, not bare-knuckle fights over power and who can “suck up” the most to an aspiring dictator.

To quote my friend Simon Rosenberg of Hopium Chronicles, “I would much rather be us than them!”

Stay strong! I will talk to you tomorrow!