Thank you, Lindsey Graham!

September 14, 2022

          On Tuesday, Lindsey Graham proposed legislation that would criminalize abortion in all fifty states. Republicans were furious that Graham revealed their true intentions before the 2022 midterms. Congressional Republicans planned to ambush the American people by pretending that reproductive liberty would be decided at the state level. By peddling that lie, Republicans hoped to seize control of both chambers of Congress—at which time they would criminalize abortion with federal legislation. Thank you, Lindsey Graham, for being stupid enough to give away the game when American voters still have a say about control of Congress in 2022.

          The media has incorrectly adopted Graham’s characterization of his legislation as “banning abortion.” Not true. The legislation does not merely “ban” abortion; it criminalizes the procedure in all fifty states, including those states that currently do not have criminal penalties for abortion. Worse, for states that have even more restrictive and punitive provisions than Graham’s proposal—like Texas, those regressive laws will remain in effect. In other words, Graham’s proposal would achieve the opposite result of Alito’s disingenuous opinion in Dobbs. Rather than returning the question to the people’s representatives in the states, the legislation would divest state voters of their right to self-determination.

          Ah! But isn’t it hypocritical for Democrats to say that they will propose federal legislation protecting reproductive liberty? Wouldn’t such legislation be subject to the same criticism as Graham’s proposed legislation? No! Graham’s legislation restricts individual freedom and would force millions of women to become parents against their will. Under Democratic legislation, individual choice will be protected, and no one will be forced to have an abortion. Graham’s proposal restricts freedom; the Democratic proposal protects it.

          For many reasons, Graham may be the most hypocritical member of the Senate—and that’s saying a lot. In the press conference announcing his legislation, he said that abortion is “a terribly complicated issue” that requires a “balancing of interests.” It is rarely the case that “terribly complicated issues” can be solved by turning those issues into felonies. Moreover, the central premise of Roe v. Wade was that of “balancing interests” between individual liberty and state interests. If Graham really believes that this complicated issue demands a “balancing of interests,” he should support national legislation codifying Roe v. Wade.

          Republicans are steering clear of Graham’s proposal because they know it will make a deeply unpopular issue worse for Republicans. See The Hill, McConnell throws shade on Graham’s proposed national abortion ban. (Per McConnell, “I think most of the members of my conference prefer that this be dealt with at the state level.”) See also, Talking Points Memo, Senate Republicans Flee From Graham’s National Abortion Ban.

          Thank you, Lindsey Graham, for reminding Democrats, Independents, and freedom-loving Republicans that the GOP is on a campaign to demote women to second-class citizens by eliminating their autonomy over one of the fundamental aspects of their personhood.

Update on Mar-a-Lago search litigation.

          On Monday, Trump filed his nonsensical opposition to the DOJ’s motion for a partial stay of Judge Cannon’s nonsensical order appointing a special master. The DOJ had until Monday, September 19th to file its reply. Rather than taking a full week, the DOJ filed its reply within 24 hours—six days earlier than required. In other words, the DOJ was champing at the bit to point out the flaws in Trump’s opposition. The DOJ’s reply is here: Reply in Support of Partial Stay.

          Much of the DOJ’s reply focuses on the lack of evidence for the assertions by Trump’s lawyers. Here are examples:

Plaintiff does not actually assert—much less provide any evidence—that any of the seized records bearing classification markings have been declassified.

Plaintiff does not specifically assert in any of his filings in these proceedings, in a sworn declaration, or through any evidence [that Trump] declassified any of these records while he was President.

          The DOJ also effectively rebuts Trump’s claim that the DOJ can perform a forward-looking damage assessment without considering evidence of past illegal conduct:

But as the government has demonstrated, its “forward looking” mission of protecting national security necessarily requires it to understand the extent to which classified information may have recently been compromised.

          The DOJ has provided Judge Cannon with a face-saving compromise to undo some of the damage inflicted by her truly awful order appointing a special master. A smart judge would leap at the opportunity to save herself from further embarrassment. Stay tuned.

The corruption of the DOJ under Trump.

          Bill Barr fired the US Attorney for the Southern District of New York, Geoffrey Berman, in the waning days of the Trump administration. Berman went down swinging, issuing a press release disputing Barr’s statement that Berman resigned. The press release promised that investigations in the SDNY would continue even if Barr fired him. Berman’s outspoken defiance of Barr and Trump was unusual for members of the DOJ under Trump. See Statement Of U.S. Attorney Geoffrey S. Berman On Announcement By Attorney General Barr. Berman wrote at the time:

I learned in a press release from the Attorney General tonight that I was ‘stepping down’ as United States Attorney.  I have not resigned, and have no intention of resigning, my position.

          Berman has now written a book that details the rampant political corruption of the DOJ under Barr and Trump. See Amazon, Holding the Line: Inside the Nation's Preeminent US Attorney's Office and Its Battle with the Trump Justice Department.

          To say that Berman’s revelations are shocking is an understatement. After the conviction of Nixon’s Attorney General John Mitchell, the DOJ instituted a series of reforms to prevent the politicization of prosecutorial decisions. Trump managed to undo a half-century of DOJ independence in a few short years. Trump, Barr, and subordinates repeatedly pressured the SDNY to bring prosecutions for political reasons. Although the US Attorney Berman resisted those entreaties, Barr “shopped” those political persecutions to other districts and was able to find corruptible US Attorneys willing to do Trump’s bidding.

          If Berman’s descriptions are true, the DOJ should be looking at prosecutions of multiple former DOJ officials—including Barr—for obstruction of justice. The obstruction of justice statute, 18 USC Section 1503, provides:

Whoever corruptly . . . endeavors to influence . . .  the due administration of justice, shall be punished . . . .

          The Senate Judiciary Committee has asked the DOJ to provide communications regarding several of the instances of corruption described in Berman’s book.

          Bill Barr was the worst Attorney General in the nation’s history. He may be the second to go to prison for obstruction of justice.

Reader Opportunities for Engagement.

     (1)     24-Hours of Action / Postcards Around the Clock

          Here is a really fun event that provides an opportunity to engage “24-Hours of Action / Postcards Around the Clock” with other committed Democrats while listening to fabulous speakers, including: Mandela Barnes, Cory Booker, Jon Ossoff, Pat Ryan, David Pepper, Tony the Democrat, Dahlia Lithwick, Daniel Squadron, Jessica Craven, Melissa Walker—and me!

          The event starts on September 19th at 7:30 PM Eastern / 4:30 PM Pacific and continues for 24 hours straight! Feel free to join / drop off at any time.

          I will speak / answer questions on September 19th from 11:00 PM – 11:45 PM Eastern (8:00 PM Pacific).

          Join for 24-straight hours of content and community, filled with authors, journalists, community organizers, civil rights leaders, and entertainers, to inspire you to kick into gear to help Get Out the Vote for the Midterms.

          Check out the amazing List of Speakers and the Full Schedule for the 24 Hours. Everything is free—but you must show up with a positive attitude and ready to have fun!

          Click on this link to RSVP!

    (2)     How to Motivate Your Friends (and Yourself) to Phonebank - with Neal Morgan of Sister District

          If you need a little persuasion to get started with phonebanking, or if you'd like to convince a few friends to do it but aren't sure what to say - join Indivisible South Peninsula as we welcome Neal Morgan, Organizing Manager for Sister District, and Jessica Craven, creator of Chop Wood Carry Water, for a one-hour motivational talk on how to get started (or re-started) with phone banking. We'll also point you towards some important phone banks to support. Fire up your phone bank engines and join us!!

          Phone banking increases voter turnout by an average of 3 percent or more, which WILL make the difference for the Democrats in many close Midterm races. Please register here for this phone banking “pep talk” if you can!

Usage note.

         To my grammarian friends and volunteer copy editors: I used “champing at the bit” because of prior objections by readers to “chomping” at the bit. While the historical origin of the phrase is “champing,” per Google’s Ngram Viewer “chomping” at the bit has overtaken “champing” at the bit in American English. Both are acceptable.

Concluding Thoughts.

          The extent of rot in the DOJ under Barr and Trump is shocking. It confirms everything we suspected about the pervasive corruption of the Trump presidency. The most worrisome aspect of the collapse of DOJ independence is that dozens (or hundreds) of seemingly law-abiding citizens easily surrendered to Trump’s corrupting influence without a fight or second thought.

How is that possible? Is there something fundamentally amoral in the Republican Party? Or is the lure of proximity to power too powerful to overcome? How is it that the lessons of John Mitchell’s prosecution could be so quickly forgotten? Are law schools failing the legal profession? Are law firms responsible for a “win at all costs” attitude that rewards profit maximation and discourages ethical actions by their partners when they assume government posts (with the expectation that they will return to their firms).

          These questions are unanswerable. But there is a response that the current DOJ must take: it must prosecute current and former members of the DOJ who corruptly interfered with the due administration of justice. A half-dozen prosecutions of senior and mid-level officials will leave an indelible impression on a generation of DOJ officials to come.

          So, too, with Trump, Meadows, Jeffrey Clark, John Eastman, and other administration officials and lawyers who facilitated the coup and encouraged insurrection. Only by prosecuting those who abused their office and obstructed justice will future generations of political appointees and elected officials understand that democracy is not a “win at all costs game” without legal consequence.

          To preserve democracy, we must be willing to test its strength by prosecuting a former president and his chief aides. It will not be easy, but it is necessary. And it will help turn the tide of public opinion against a lawless party that exalts power over freedom. Democracy is on the ballot in 2022. We must not forget that fact.

          Talk to you tomorrow!