The forest for the trees, or “Bright, shiny objects.”

June 30, 2022

[I hope to resume audio version tomorrow]         

Many major media outlets buried the lede regarding Cassidy Hutchinson’s testimony on Tuesday. The key takeaway was not that Trump tried to take the wheel of his presidential SUV to drive to the Capitol on January 6th. Nor was it that Trump routinely threw dishes in the dining area near the Oval Office. And it had nothing to do with which of Trump’s aides recorded Mark Meadows’ proposed comments for Trump to call for an end to the violence. Rather, the import of her testimony is this:

          Trump and his co-conspirators planned to use violence on January 6th to delay the count of electoral ballots. Trump intended to enter the Capitol to intervene in the joint session of Congress at which electoral ballots were being counted (as commanded by the Constitution). Trump’s personal appearance at the Capitol was an essential part of the plot. Indeed, his appearance at the joint session was to be the final, triumphant act designed to override the Constitution and overturn the election.

          To most observers, those ultimate facts should be a supernova of depravity that outshines every other detail or nuance of Hutchinson’s testimony. But Trumpworld was able to distract major media outlets by dangling bright, shiny objects before gullible journalists: Anonymous leaks from Secret Service officers who claim that agents will testify that Trump did not “assault” his security detail in his SUV. Of course, Hutchinson did not testify that Trump “assaulted” his security detail. The anonymous leak was thus a “non-denial” denial.

          An NBC reporter was duped by those anonymous leaks, breathlessly tweeting that two agents would allegedly testify to the absence of an “assault” without bothering to note that the denial did not contradict the substance of Hutchinson’s testimony. Shame on them! And, in case you missed it, NBC has now “walked back” the degree to which the anonymous agents will refute Hutchison’s testimony. In an article entitled, Cassidy Hutchinson's Jan. 6 testimony comes under increased scrutiny, NBC buries the following tidbit:

But parts of Hutchinson’s testimony involving Trump’s car ride back to the White House after his Jan. 6 rally at the Ellipse have been validated by others. One person close to the Secret Service said that “there are very important pieces of the testimony that are out there that [agency officials] have no issue with. … We don’t want to lose the forest for the trees.”

          Indeed, before Hutchinson’s testimony, Politico reported on testimony by one of the agents—Bobby Engel—that essentially corroborates Hutchinson’s testimony. See Politico, Trump privately raised Jan. 6 Capitol appearance with Secret Service agent, select panel hears. Per Politico,

Engel told Jan. 6 select committee investigators that the two men [Engel and Trump] discussed Trump’s desire to go to the Capitol and took different views on the topic. Engel noted that they went back to the White House instead of heading to Capitol Hill.

          So, as reported in Politico, Secret Service Agent Bobby Engel has already testified that he “took a different view” than Trump on whether the president could go to the Capitol as it was under attack. Any attorney worth his salt can drill down on Engel’s evasive statement that he “took a different view” than the president to fill in detail (with the benefit of Hutchinson’s testimony).  And NBC concedes that Trump was “irate” in his disagreement with Engel. The import of Hutchinson’s testimony is uncontested: Trump tried to force his Secret Service detail to take him to the Capitol as it was under attack.

          NBC has been used as a tool for disinformation by a Secret Service agent who was temporarily assigned to Trump as his “political adviser.” Indeed, that agent, Tony Ornato, has a history of denying statements critical of Trump that he made to reliable witnesses. See Mediate, Alyssa Farah and Olivia Troye Say Tony Ornato is a Liar. NBC allowed Ornato to get away with his gambit by accepting off-the-record, unsworn statements in the face of Hutchinson’s sworn testimony.

          As noted by Josh Marshall at Talking Points Memo, the “off the record” denial by the Secret Service is a standard part of the Washington playbook. See Talking Points Memo, Talk (On Background) Is Cheap. Per Marshall,

People who claim they are just champing at the bit to testify usually end up refusing to testify. Indeed, it’s fair to question the journalistic decisions behind some of these reports. . . . Her claims definitely deserve scrutiny. But testimony under oath is the price of entry to this conversation

          A recent example of the manipulation of the media by “off-the-record” and unsworn statements is Ginni Thomas. She was able to indignantly deny allegations that she was involved in the insurrection, promising to meet with the January 6th Committee to “clear up any misunderstanding.” Of course, to the surprise of no one, Ginni Thomas has reneged on her offer to meet with the Committee. See Politico, Ginni Thomas lawyer has ‘serious concerns’ about Jan. 6 committee fairness.

          Perhaps most significantly, Cassidy Hutchinson has thrown down the gauntlet in the face of right-wing attempts to undermine her credibility. Her attorney released the following statement on Wednesday: “Ms. Hutchinson stands by all of the testimony she provided yesterday, under oath, to the Select Committee to Investigate the January 6th Attack on the United States Capitol.” Given Hutchinson’s strong presentation on Tuesday, I would put my money on Hutchinson in a credibility contest with a Trump loyalist who has a history of denying statements he made that reflect poorly on Trump.

          One final note about Hutchinson’s testimony: Many commentators (and readers) have noted that much of her testimony is hearsay. Maybe, but that is probably irrelevant. First, to the extent that she reported statements from Trump’s co-conspirators, their statements likely can be admitted as evidence against them. But more importantly, Hutchinson identified the source of the hearsay statements. Many of those sources have refused to testify before the Committee but can be forced to testify before a grand jury. When they testify about what they said (or what Trump said), that testimony will not be hearsay.

          So, if you are worried that right-wing media and defense lawyers will be able to undo the damage of Hutchinson’s testimony, it is too late. Conservative newspapers and commentators are already abandoning Trump. After praising Hutchinson’s credibility, the conservative Washington Examiner Editorial Board wrote that

Hutchinson’s Tuesday testimony ought to ring the death knell for former President Donald Trump’s political career. Trump is unfit to be anywhere near power ever again.

And Trump’s former chief of staff, Mick Mulvaney, attacked his former boss in USA Today, Cassidy Hutchinson cast real doubt on Trump's innocence: Mick Mulvaney.

          With the benefit of 24 hours of reflection, Cassidy Hutchinson’s testimony is as consequential as it seemed on Tuesday—perhaps more so. Her testimony may not be the “death knell” for Trump as claimed by the Washington Examiner, but it may be the tipping point. The January 6th Committee is not done with its work; indeed, it may be just getting started. Good!

From constitutional right to felony.

          After reflecting on the impact of Dobbs for the last several days, this thought has stayed with me: In the span of 24 hours, a long-standing constitutional right to an abortion became a felony in more than a dozen states. Never before (and never again) will a constitutional liberty be converted into a felony in a single day. Alito and his colleagues knew that would be the result despite their performative handwringing over the difficult moral and legal issues presented by abortion.

          Although I don’t have the time (or energy) to do a review of developments in state law regarding abortion, see this article: Where abortion stands in your state: A state-by-state breakdown of abortion laws. My point is this: The anodyne claim that the reactionary majority has returned the question of abortion to the “people’s elected representatives” masks the Kafkaesque turn of events in which in which the Court knowingly assisted in conversion of a long-standing constitutional right into a felony.

Reactionary majority allows racially gerrymandered districts in Louisiana to stand.

          The Supreme Court used its shadow docket to strike another blow to voting rights of Black Americans. As Steve Valdeck tweeted,

Over dissents from the three liberal Justices, the Supreme Court issues unsigned, unexplained shadow docket order putting Louisiana's congressional maps (which a district court blocked) back into effect and adding the case to the merits docket for next term.

          By resorting to its shadow docket, the Court has once again granted substantive relief to Republican lawmakers seeking to defend racially gerrymandered congressional districts. The hostility of the Court to voting rights is manifest. It is time to expand the Supreme Court. All it takes is a majority vote to carve out an exception to the filibuster, a majority vote in Congress, and a presidential signature. Democrats have the votes and control now. They should exercise that authority while they have it.

Concluding Thoughts.

          Thanks to the many readers who wrote to wish me a speedy recovery from COVID. I am following all of the instructions that readers included in their emails and comments: rest, fluids, and antiviral medication.

          After a very challenging post-Dobbs week, I want to share an overview of emails and comments from readers. First, many people are still processing the shock of the decision. As I wrote last week, it is incumbent on us to understand the paradigm-shifting, world-shattering impact of being stripped of an existing constitutional right (and being told it is a felony in many states). For those of us who haven’t had our rights curtailed, we should spend more time listening and less time talking.

          In addition to the emails expressing rage, frustration, and fear, a sizable percentage of readers have vowed to work even more diligently to win every election on the ballot. With the possible exception of the surge of resistance and enthusiasm after Trump’s election, I have never seen such a unified, determined reaction among readers to an event. That is appropriate, understandable, and gratifying. If you are feeling alone, despondent, or dejected over prospects for victory, you are not alone. There are millions of newly energized (and re-energized) voters who are working toward victory in 2022, 2024, and beyond.

          Dobbs has flipped the political dynamic in America. After fifty years, Democrats are now playing offense, and Republicans are on defense. And the instincts of Republicans are grievously wrong in the face of their victory. Rather than promising to help women and children as a way of softening the blow, they are engaging in “performative cruelty” designed to rub salt in the wounds of American women now subject to control by state legislators. Republicans got what they wanted but will regret it for as long as there is a Republican Party (whose half-life may be measured in years, rather than decades). We are on the right side of history and democracy. The fight to reclaim full citizenship for women will not be easy or quick. But the outcome is not in doubt. That is what readers are telling me. I believe them. You should, too!

          Talk to you tomorrow (probably)!