“Tending to democracy.”

January 23, 2022

[Audio version here]

          After the drama of last week, the weekend felt relatively calm—with emphasis on “relatively.” Even major stories fly under the radar in the new normal of abnormal politics. The most important stories relate to the ongoing work of the January 6th Select Committee, which continues to exceed expectations in terms of diligence, speed, and tenacity. Revelations from the Committee are putting pressure on the DOJ to consider (and act on) the mounting evidence of criminality by Trump and his co-conspirators in their effort to overturn the 2020 election.

          On Sunday, Committee Chairman Bennie Thompson revealed that the Committee has interviewed Bill Barr. The fact that Barr is cooperating with the Committee will go a long way to overcoming the stonewalling by Mark Meadows, Steve Bannon, John Eastman, and Jeffrey Clark. Bill Barr is one of my least favorite people, but the fact that he is cooperating with the Committee should give all of us comfort that the DOJ was not, as an institution, involved in efforts to overturn the election. Instead, it appears that Jeffrey Clark, Acting Head of the Civil Division of the DOJ beginning in September 2020, was acting on his own rather than as part of a concerted effort within the DOJ to assist Trump’s unsuccessful coup.

          Chairman Thompson’s comments created some misleading headlines over the weekend, which suggested that the military was part of a plan to seize voting machines. See NPR, “Trump team considered seizing voting machines, Jan. 6 Committee chair says.” The headline reflects Bennie Thompson’s statement on Face the Nation, where he said, “If you are using the military to potentially seize voting machines ... the public needs to know.” Of course, Chairman Thompson is right. The public deserves to know if the military was involved in such a plot. But it is a giant leap from a draft executive order of unknown provenance to an assertion that the military was aware of, approved of, or planned to participate in a plot to seize voting machines. It is worth remembering that on November 12, 2020 (nine days after the election), Chairman of the Joint Chiefs of Staff Mark Milley issued the following statement:

          We are unique among militaries. We do not take an oath to a king or a queen, a tyrant or a dictator. We do not take an oath to an individual. No, we do not take an oath to a country, a tribe or religion. We take an oath to the Constitution.

          In other words, the military wasn’t going to take sides in the election disputes raised by Trump. The most likely source of the draft executive order was someone like Michael Flynn, Rudy Giuliani, or Sydney Powell, who were running around the country in November and December 2020, making wild claims that were being thrown out of court at a dizzying pace. At that time, Michael Flynn publicly proposed that the military seize voting machines and “re-run the election.” Thus, the most likely source of the draft executive order was Flynn, Giuliani, or Powell—not someone from within the White House or the DOJ. The fact that a wild man (or woman) handed Trump a delusional executive order with no support in the Constitution or law does not mean that the military was considering “potentially seizing voting machines.” Let’s not get ahead of the facts. We cannot afford to undermine trust in the military unless the facts prove otherwise.

          And in a sure sign that the January 6th Committee is getting nearer to the truth, Trump exploded over the weekend, saying that the Committee was composed of “vicious people” who were “unfairly” going after “children.” Of course, the “children” that Trump is referring to include his (adult) daughter, Ivanka Trump, who accepted a position as a White House employee to serve as a special adviser to Trump. It appears that in her role as a White House employee, Ivanka witnessed Trump commit an overt act in furtherance of the criminal conspiracy to overturn the election. The Special Committee’s letter requesting testimony from Ivanka Trump said, in part,

President Trump attempted on multiple occasions to persuade Vice President Pence to participate in his plan. . . . You were present in the Oval Office and observed at least one side of [one such] telephone conversation. . . . [T]he Committee would like to discuss any other conversations you may have witnessed or participated in regarding the President’s plan to obstruct or impede the counting of electoral votes.

The Supreme Court again rejects efforts to enjoin enforcement of a portion of the Texas anti-abortion law.

          Last Thursday, the Supreme Court again declined to stay a portion of the Texas anti-abortion law. Superficially, the decision seems consistent with the Court’s prior refusal to stay enforcement of the law. It was not. Indeed, last week’s refusal was even more outrageous than the original denial of a stay. The facts are complicated, so let me give a simplified version of those facts and invite you to read the op-ed by Ruth Marcus in The Washington Post for a detailed explanation. See “The handling of the Texas abortion case is an embarrassment for the federal judiciary.”

          When the Supreme Court refused to stay enforcement of the Texas anti-abortion statute, it made one exception. It ruled that courts could enjoin Texas licensing authorities from suspending the medical licenses of doctors. But when the case was sent back to the Fifth Circuit Court of Appeals for further proceedings consistent with the Supreme Court’s order, the Fifth Circuit decided to send the case to the Texas Supreme Court for its views on whether the licensing authorities could be enjoined. But the U.S. Supreme Court already ruled that the licensing authorities could be enjoined. But last week, the U.S. Supreme Court said that it wouldn’t second-guess the Fifth Circuit’s obvious bad-faith delaying tactic. As Justice Sotomayor wrote in her dissent,

Today, for the fourth time, this Court declines to protect pregnant Texans from egregious violations of their constitutional rights. One month after directing that the petitioners’ suit could proceed in part, the Court countenances yet another violation of its own commands. Instead of stopping a Fifth Circuit panel from indulging Texas’ newest delay tactics, the Court allows the State yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation. The Court may look the other way, but I cannot.

          The latest action by the Supreme Court has moved out of the arena of politically motivated jurisprudence into a circus of sham and farce. It is a tragic fall for the Court, one that can be corrected by congressional action to strip the Supreme Court of some of its appellate jurisdiction. If the Supreme Court cannot follow the law or respect its own precedent, Congress can severely limit the cases the Court can hear. See, e.g., memo authored by John Roberts when he was Special Assistant to Attorney General William French Smith, “Proposals to divest the Supreme Court of Appellate Jurisdiction.” See also, Politico, “The Other Tool Democrats Have to Rein in the Supreme Court.”

Kyrsten Sinema’s political career is over.

          Over the weekend, the Arizona Democratic Party executive board censured Senator Kyrsten Sinema because she refused to support voting rights legislation by making an exception to the filibuster rule. While I question the wisdom of that action, it is not the reason that Sinema’s political career is over. A blog post by Josh Marshall in Talking Points Memo considers the various paths forward for Sinema and makes a persuasive case that each path leads to defeat. See Talking Points Memo, “Rejoice—Kyrsten Sinema’s Political Career is Already Over.”

          As Marshall notes, Sinema’s vote on the filibuster makes sense only if she has already decided to run in 2024 as an Independent. But here is the bad news for Sinema: She is unpopular with Republicans, is really unpopular with Democrats (72% want to replace Sinema) and is even more unpopular with Independents. As Marshall observes,

Sinema is actually very unpopular with Arizona independents. She’s less popular with them than with Democrats or Republicans! (You’ve got to work at it to do this badly.)

          Sinema does not understand how badly she has alienated the coalition of Democrats and Independents who elected her in 2018. If she runs as a Democrat, she will lose in the primary. If she runs as an Independent, she will place third (or lower) in the general election. In the meantime, we should try to keep her in the Democratic caucus in the Senate, which is why it is a bad idea to censure her or otherwise tell her she is no longer welcome in the Democratic Party. We don’t want Mitch McConnell as the Majority Leader in the Senate. If Sinema switches parties before 2024, that will be the result.

Concluding Thoughts.

          Two of the questions I am asked most frequently by readers are, (a) What should I do to get involved, and (b) Where should I donate my money? There is no single “best” answer to those questions, but here is a suggestion for you to consider. The States Project is dedicated to flipping control at the state level in legislatures and governorships. The model of The States Project is for volunteers to form a circle of friends who join together to support specific races in “target” states. Strategic investments of small amounts of money can yield tremendous swings in political power at the state level. For example, if Democrats can flip just two seats each in the Arizona Senate and House in 2022, they will gain control of state government in a critical swing state going into 2024. The amount of money necessary to swing a state election is a fraction of the amount of money necessary to flip a U.S. Senate seat or competitive House seat.

          Over the weekend, I interviewed Melissa Walker, Director of Giving Circles for The States Project. The full interview is here: Today’s Edition Podcast, The States Project interview with Melissa Walker. You don’t have to be a fundraising professional to join with a group of friends, educate yourselves about a race, and set a collective goal for giving to a race. Indeed, if you join with a few friends to create a giving circle, it will be fun, rewarding, and educational. If you are looking for a way to get involved and make a big difference with individual donations, The States Project is for you. Check out the podcast, linked above. If you don’t have time to listen to the whole podcast, listen to this two-minute snippet as Melissa describes the critical role of state legislatures. The essential role of State Legislatures/Melissa Walker (callin.com).

          At the end of each podcast, I ask the guest to describe what they would say if they had two minutes to address all Americans. Melissa gave an answer that I found inspiring. In truly moving comments, Melissa said that

          This is the first moment in my life where I feel like I will spend the rest of my life tending to democracy in a way that I didn’t know was necessary.

          Melissa’s realization describes my own political awakening—and that of millions of other Americans. She also addresses the issue of exhaustion among Democratic volunteers who are buckling under the ever-increasing calls to defend democracy. She says that “we have been pushing as hard as we can” over the last few years, and that it would be easy to go back to her former life as a novelist. But drawing on the inspiration from the civil rights leaders of the 1960s, she says,

          For right now, I tell myself that I can’t get tired and I won’t get tired . . . I think about how tired the civil rights leaders must have been after being beaten and waking up in hospital beds and facing that darkness . . . and I know that if those folks kept going, who am I not to keep going . . .  

          Listen to Melissa’s inspiring two-minute closing remarks in her own voice, here: “I will spend the rest of my life tending to democracy / Melissa Walker.”

          We will all be “tending to democracy for the rest of our lives.” That is hard work, but it is also a blessing and a privilege. Let’s not begrudge our task but celebrate and embrace it!

          Talk to you tomorrow!