Today’s Edition: A supreme test.

December 10, 2021

          Trump and his enablers see the Supreme Court as an ally in their effort to evade justice and escape accountability. Trump appointed three Justices while he was under investigation by Robert Mueller or after disclosure of his attempt to extort Ukraine. The patronage of a corrupt president was essential to the appointment of Gorsuch, Kavanaugh, and Barret. That is why Trump and his functionaries run to court without hesitation, believing that their baseless claims will receive a warm welcome by the reactionary conservative majority. Alternatively, they believe that if the Trump’s justices cannot hold their noses to rule in the former president’s favor, they will take their sweet time ruling against Trump—thereby giving him the political cover he needs. Harsh words, I know. But the Court is about to face a supreme test of whether its stands for democracy or against it.

          On Thursday, a panel of the D.C. Circuit Court of Appeals eviscerated Trump’s claim of executive privilege relating to a subpoena from the House Select Committee directed to the National Archives. Trump will petition the Supreme Court to review the D.C. Circuit’s ruling. The Court has demonstrated that it is capable of swift action when judicial haste aligns with the reactionary majority’s social and religious agenda. The Court can and should act swiftly in denying Trump’s petition for review. If it does not, the Court will prove that they are—in Amy Coney Barrett’s apt description—“partisan hacks.” More importantly, the Court will once again become an accomplice in Trump’s post-coup strategy of delay and misinformation.

          The opinion of the D.C. Circuit Court of Appeals is here, Trump v. Bennie Thompson. Before turning to the opinion, it is worth noting that the subpoena from the House Select Committee was directed to an agency of the executive branch—the National Archives. The head of the executive branch—President Joe Biden—agreed that that the National Archives should release the requested records and waived any claim of executive privilege. Thus, the party that issued the subpoena and the party that received the subpoena agreed that the requested records should be produced.

          Trump is no longer president, is a stranger to the subpoena, and is not the holder of the privilege, which has been waived in any event. His claim of executive privilege is specious. But what Trump is requesting is delay. He is asking the courts to order the National Archives to withhold the records so that he can litigate the merits of his specious claim—a process that he will undoubtedly attempt to drag out until 2024 or thereafter. Here, if the request for delay is granted, Trump wins.

          In a key passage in its opinion, the D.C. Circuit Court of Appeals concluded,

Even under ordinary circumstances, there is a strong public interest in Congress carrying out its lawful investigations, and courts must take care not to unnecessarily “halt the functions of a coordinate branch.” That public interest is heightened when, as here, the legislature is proceeding with urgency to prevent violent attacks on the federal government and disruptions to the peaceful transfer of power. . . . Reinforcing that public interest, President Biden has concluded on behalf of the Executive Branch that disclosure is “in the best interests of the United States.”

          In another key passage, the D.C. Circuit panel noted that the Constitution vests power in “a” president—as in “one” president—not in a collective body consisting of the current president and any living former presidents. The panel wrote,

To start, as the incumbent, President Biden is the principal holder and keeper of executive privilege, and he speaks authoritatively for the interests of the Executive Branch. Under our Constitution, we have one President at a time. Article II is explicit that “[t]he executive Power shall be vested in a President of the United States of America.” As between a former and an incumbent President, “only the incumbent is charged with performance of the executive duty under the Constitution.”

          The question presented by Trump’s request for an injunction is not a close one. If the Court grants review, it will be granting Trump the relief he seeks regardless of the Court’s ultimate ruling on the merits.

          Swift action by the Court in denying Trump’s request for review will also encourage Mark Meadows to drop his baseless assertions of executive privilege in response to a subpoena from the House Select Committee. The Committee has voted to refer Meadows for prosecution by the DOJ for criminal contempt; Meadows followed Trump’s playbook by filing a preemptive suit to quash the subpoena. As Rep. Adam Kinzinger said, “Sounds like he is trying to delay.” For good reason. Meadows has already produced documents that show he was working with “a member of Congress” on a plan to encourage states to appoint “alternative slates of electors” that favored Trump. Of course, the Constitution contains no provision for “alternative slates of electors” appointed by the states. In other words, Meadows was encouraging the extra-constitutional overthrow of the 2020 election.

          Meadows should have a lot more to worry about than criminal contempt for disobeying a congressional subpoena—but only if Merrick Garland’s DOJ indicts Meadows for conspiring to overthrow the government. Until that happens, the question remains whether delay will be enough to defeat justice, or whether the Supreme Court will finally place the interests of the American people above those of their political patron. As I said, it will be a supreme test of the Court that will inform the debate over enlarging the Court. See Nancy Gertner and Laurence Tribe op-ed in The Washington Post, “The Supreme Court isn’t well. The only hope for a cure is more justices.”

Well, this is interesting.

          New York Attorney General Letitia James suddenly dropped out of the race for NY Governor. She said, “There are a number of important investigations and cases that are underway, and I intend to finish the job.” One of the “important investigations” that James has underway is a civil investigation of the Trump organization. She has asked Trump to sit for a deposition on January 7, 2022, to explain suspicious fluctuations in valuations of Trump properties depending on the audience (e.g., tax authorities versus lenders). While a civil investigation won’t pack the same punch as a criminal indictment, it can’t help his standing with persuadable Independents if he is charged with tax fraud or bank fraud. Stay tuned.

Two court challenges to voter suppression tactics.

          A federal judge has denied a motion to dismiss a suit challenging Georgia’s recently enacted voter suppression laws. See The Hill, “Judge clears way for legal challenge to Georgia's restrictive voting law.” Another positive ruling came from North Carolina, where the state supreme court has delayed the 2022 primaries because of a challenge to gerrymandering by the state legislature. See Talking Points Memo, “North Carolina Supreme Court Delays Primaries Amid Battles Over GOP Gerrymandering.” Per TPM,

          The plaintiffs in both [North Carolina] cases accuse Republicans of illegally gerrymandering the maps on the basis of race and political leanings in order to lock in GOP control of North Carolina state and federal seats.

          While these cases may not prevent unfairness in the 2022 cycle, they demonstrate that Democrats are aggressively challenging the spate of voter suppression legislation enacted after Trump’s loss. If Democrats “flood the zone” with litigation, they will win some and lose some. Any victories we achieve will help to restore the voting rights of citizens whose voices the GOP seeks to suppress. Good.

More Doomsaying from The Atlantic.

          Readers have sent me dozens of copies of an article in The Atlantic, “Trump’s Next Coup Has Already Begun.” I subscribe to The Atlantic, so when I saw the headline appear in my inbox, I rolled my eyes and moved on. The Atlantic has recently specialized in articles predicting the end of democracy as we know it. After reviewing and responding in this newsletter to several of those articles over the last three months, I assumed that readers aren’t interested in The Atlantic’s incessant doomsaying. I was wrong. The most recent article has provoked a new round of anxiety.

          Don’t get me wrong. I have gone to the bother of writing 2,229 daily newsletters proclaiming the threat to democracy posed by Trump. I agree that we should be doing more, with greater urgency and effectiveness. I believe we should sound the alarm and do everything in our power to oppose the corruption and bad faith of the GOP. But I do not believe we are helpless, I do not believe that our cause is lost, and I do not believe that instilling fear and promoting defeatism is the way to motivate people. So, no need to send emails chiding me for suggesting that we have nothing to worry about. That is not what I am saying.

          I tried to ignore the article until my Managing Editor heard the author interviewed on NPR and told me I owed it to my readers to discuss the article. So, I went to the bother of reading every word of the article. I read every meandering, repetitive, anecdote-filled, ominous word of an article that could have been shortened to about two pages if it was limited to a factual discussion of “the next coup.” Most of the article is devoted to recounting the attack on the Capitol on January 6th, interviewing deluded Trump supporters who refuse to accept that Biden won the 2020 election, and discussing the well-known effort to object to the count of the electoral votes on January 6th. All of this we know. Those facts are horrific and describe some of the darkest days of our republic. If the article was entitled, “A Detailed Review of the Events of January 6th,” that would have been a fair description of its main theme.

          But the headline refers to Trump’s “next coup.” [As an aside, I do believe that Trump will attempt another coup.] Here is a fair summary of the author’s discussion of that topic: Republicans are seeking to place Trump loyalists in key election positions in the states. That’s it. True, and worrisome. But not apocalyptic. And there is not a straight line between “Republican election officials” and “coup.” The author of the article assumes that those officials will break the law by tampering with the vote. The author’s alarming thesis appears in the first paragraph of the article—but is hardly discussed again. The author says,

          Thousands of votes will be thrown away, or millions, to produce the required effect. The winner will be declared the loser. The loser will be certified president-elect.

          When you claim that “millions of votes” will be “thrown away,” that seems like an assertion that you should attempt to prove with something more than innuendo and speculation. As I responded to one reader who forwarded the article to me, votes are tallied by computer with an audit trail. “Throwing away” votes is something that can’t be done easily or without notice. Is it possible? Sure, but it would require criminal conduct on a massive scale. For example, the “fraud audit” by Arizona Republicans failed to find any discrepancies in the vote despite the reckless, amateurish, and conspiracy-fueled manner in which the audit was conducted.

          I could go on, but I have gone on too long as it is. My simple point is that despite the alarming headline, there is nothing in The Atlantic article that we don’t already know. So, let’s focus on what we were already doing to defend democracy by winning elections by uncontestable margins.

Concluding Thoughts.

          A central premise of most doomsaying articles is that the American people are powerless to stop impending doom. Let’s recognize that premise for what it is: a literary fiction that makes it easier to write apocalyptic predictions. We are not powerless in shaping our own destiny. History has yet to be written—and it will be written by those who act. Let that be us!

          Talk to you on Monday!