Today’s Edition: A shot across the bow.

November 15, 2021

          Last Friday, a federal grand jury indicted Steve Bannon on two counts of criminal contempt for failing to appear for testimony before the House Select Committee and for failing to produce documents to the Committee. Bannon faces up to two years in federal prison, if convicted. Let’s hope he serves the maximum time in prison—which would serve as a warning shot across the bow of lesser Trump luminaries who must work for a living post-Trump. But Bannon is a media star who may not care if he is convicted; indeed, he may welcome it. Given the shambles that passes for Bannon’s life, several months in federal prison may be a welcome relief. More to the point, it will elevate his status as the ultimate Trump supporter and outlaw prophet foretelling a coming civil war. Bannon monetizes that status every day by snookering gullible Trump loyalists into purchasing dubious health supplements and MAGA merchandise to fund the revolution.

          Was it a wise move to indict Bannon for contempt? Absolutely! Though Bannon may not care about jail time, other Trump aides will. For most people, a good rule of thumb is that you should try to avoid being indicted by a federal grand jury. Even if you are not convicted, the indictment and arrest will put a crimp in all future applications for employment, credit, and security clearances. The Committee is hoping that lesson will not be lost on Mark Meadows, Stephen Miller, and Kayleigh McEnany. Indeed, committee member Rep. Adam Schiff made that threat explicit on Sunday. See Talking Points Memo, “Schiff Says Jan. 6 Committee Will ‘Move Quickly’ To Refer Meadows For Criminal Contempt.”

          Some readers have suggested that it would have been a better strategy to file a civil contempt charge against Bannon, which could have resulted in daily fines and immediate incarceration until he agreed to testify. The House Committee undoubtedly considered the option of civil contempt, but likely concluded that Bannon will refuse to testify no matter what happens. If true, the better strategy is to punish Bannon for refusing to appear, thereby sending a strong message that will motivate cooperation from other witnesses. Moreover, if Bannon is charged with civil contempt for failing to appear, he could cure the contempt at any moment by agreeing to appear—at which point he would refuse to testify by invoking the Fifth Amendment. Bannon cannot cure the criminal contempt by agreeing to appear in the future. The purpose of criminal contempt is punishment, not remediation. For an excellent discussion of the merits of criminal versus civil contempt charges for Bannon, see Chuck Rosenberg’s essay in Time, “Why Holding Steve Bannon in Criminal Contempt Makes Sense.”

          A note of caution regarding Bannon’s trial for contempt. The case has been assigned (randomly) to a federal district judge appointed by Trump, Carl J. Nichols, who clerked for Supreme Court Justice Clarence Thomas. Trial judges rule on evidentiary and legal matters that can limit the evidence presented to a jury and shape the instructions given to the jury at the close of evidence. Judge Nichols may be hostile to the prosecution of Bannon, and could make life difficult for the prosecutors. Or not. The record of Nichols’ rulings in cases involving Trump suggests that he follows the law even when that means that his rulings are adverse to Trump’s interests.

          When announcing the Bannon indictment, Attorney General Merrick Garland issued a statement that was simultaneously self-satisfied and defensive—indicating that he is listening to the frustration of the American people over the glacial pace of his  prosecutions. Garland said,

          Since my first day in office, I have promised Justice Department employees that together we would show the American people by word and deed that the department adheres to the rule of law, follows the facts and the law and pursues equal justice under the law. Today’s charges reflect the department’s steadfast commitment to these principles.

          The only thing missing from Garland’s statement is a sense of urgency. The indictment of Bannon is a first step—barely. As Martin London writes in his blog post titled, “Get Going,” the Department of Justice has a limited window of opportunity to prosecute those who attempted to overthrow the Constitution:

          Because there is little doubt the Republicans will kill the January 6 insurrection inquiry if they get the opportunity, this administration needs to do everything in its power to expose every aspect of the greatest threat to this country since the firing on Fort Sumter and the abrogation of the Constitution via the secession of the southern states. One of the tools the government has is something aptly named the Department of Justice. It's time for that organization to earn its honored title. If its current personnel are not up to the job, then Joe Biden should focus on finding people who are. There is no scarcity of motivated talent.

          Let’s hope that Garland is emboldened by the prompt indictment of Bannon to bring a similar sense of urgency to other matters.

Biden’s steady hand in the pandemic matters.

          Biden continues to push mask mandates and vaccine mandates despite the fact that Americans are exhausted from the pandemic. For his unflagging commitment to the health of the American people, Biden’s favorability ratings have fallen significantly. While that may be unfair, things could be worse. A lot. Europe is currently experiencing its highest infection rate since the pandemic began. Let me repeat that statement: Europe is currently experiencing its highest infection rate since the pandemic began. See NBC News, “Covid is surging in Europe. Experts say it’s a warning for the U.S.”

          The countries of Germany, Belgium, and the Netherlands are seeing record infection rates, with the latter imposing a partial lockdown for three weeks. Joe Biden is doing his best to prevent us from returning to the difficult days of lockdowns. For that, he deserves praise and support, not criticism. It isn’t over, folks. Let’s be careful out there!

Global climate summit issues first statement about reducing dependence on coal.

          The United Nations global conference on climate change ended over the weekend. The conference did not agree to the carbon emissions goals that scientists believe are necessary to prevent runaway global warming from greenhouse gas produced by humans. But the conference attendees did agree for the first time to “phase down” reliance on coal. That step signals the death knell for coal—regardless of the language adopted by the conference. See Reuters, “Coal trajectory is set whether it's 'phase out' or 'phase down'.” The progress is modest and not enough. But it is progress, nonetheless—unlike the retreat and denialism of the previous administration.

Michael Flynn demands “one religion” in the U.S.

          Last week, Republican members of a school board were advocating burning books. This week, former National Security Adviser Michael Flynn is calling for “one religion under God.” See HuffPost, “Michael Flynn Demands 'One Religion Under God' At Far-Right Rally.” At a right-wing rally in Ohio, Flynn said,

          If we are going to have one nation under God — which we must — we have to have one religion. One nation under God, and one religion under God.

          It is easy to dismiss Flynn as someone who has lost touch with reality and is speaking to a small subset of Trump extremists who have done the same. But Josh Mandel, a Republican candidate to succeed Senator Rob Portman, tweeted, “We stand with General Flynn.” The Republican Party is repudiating the Constitution in word and spirit.  Whatever differences might exist among Democrats, nothing is more important than stopping the GOP from gaining control over either chamber of Congress or the presidency.

Concluding Thoughts.

          For my concluding thought today, I strongly encourage readers of this newsletter to read Dan Rather’s blog post at Steady, “It's Okay To Be Exhausted.” Rather begins by noting a long list of items that are exhausting, including Covid (and our response to it), threats to our democracy, Trump (and his allies), vitriol, false equivalence, and the climate crisis. He then notes that those who seek to destroy democracy (like Steve Bannon) are using exhaustion as a weapon:

          We get to a point where the exhaustion is itself exhausting. And I firmly believe that the forces who seek to undermine our society, who seek to pit us against each other for their cynical gain, see exhaustion as a potent weapon at their disposal.

          Rather offers the following hopeful observation and prescription:

          Over the course of my career I have covered many protest movements that have ultimately proved successful. And I have found one of the hallmarks for that success is that they are collective actions where members of the group step up to help others when they get exhausted.

          So not only is it okay to be exhausted, it’s okay, in fact necessary, to take a break. Step away from your screen or your newspaper and step outside for a walk. Talk to friends and family . . . .

          Again, I urge you to read Rather’s entire essay. It will lift your spirits and fortify you for the fight to come.

          In the early days of this newsletter, I naively articulated a set of “Rules for Resisting Trump.” Not all of the rules have aged well. But one rule remains relevant and helpful. In March of 2017, I wrote:

          Don’t exhaust yourself. Lead if you are able, follow whenever possible, and take a break when necessary. It’s about the long term.

          We are engaged in a struggle for the soul of democracy. That struggle will continue long past our lifetimes. We can’t expect that “the next election” will solve our problems. The “next election” will earn us only the right to continue the fight. Yes, it is exhausting, but it has always been so. As Rather says, successful protest movements “are collective actions where members of the group step up to help others when they get exhausted.” There are hundreds of millions of Americans ready to defend democracy. If we all do our part when we can, we cannot fail.

          Talk to you tomorrow!