Today’s Edition: Justice delayed.

November 12, 2021

          On Thursday, a three-judge panel of the D.C. Circuit Court of Appeals issued a temporary stay of Judge Tanya Chutkan’s order requiring the National Archives to provide documents to the House Select Committee over Trump’s claims of executive privilege. The appellate panel set an expedited schedule for hearing the appeal. Oral argument will be heard on November 30, 2021. Whatever happens, expect a petition for review by the Supreme Court. It is likely that the Supreme Court will accept the case for review.

          If the Supreme Court was not stacked with Trump acolytes, it would likewise resolve the appeal in a matter of weeks. But we should not expect the Court to rouse itself to action even though the issues involve an ongoing to attempt to overthrow constitutional order. The Trump majority on the Court knows that delay alone is a win for Trump. Even if the Court ultimately rules against Trump in late 2022, it will be too late. The work of the Select Committee will be completed—without benefit of documents that belong to the American people, not to Donald Trump.

          Where does this leave us?  Unfortunately, Merrick Garland appears to be waiting for the Supreme Court to provide definitive guidance on the invocation of executive privilege by a former president. Garland’s delay has a cascading effect, empowering Trump allies like Steve Bannon and Mark Meadows to assert the privilege while waiting for the Supreme Court to provide guidance definitive enough to satisfy Merrick Garland’s skittish disposition. That means that the Special Committee must complete its work without testimony from Trump’s inner circle about their efforts to overthrow the 2020 election by subverting the constitutional order.

          Amid a torrent of criticism of Merrick Garland, two experts have written the definitive defense of Garland’s temporizing. See Jonathan Shaub and Benjamin Wittes in Lawfare, “Why the Justice Department is Taking So Long to Indict Steve Bannon.” Shaub and Wittes describe in detail that nuances and ambiguities that may give Steve Bannon a good faith defense against a charge of criminal contempt. After reviewing the uncertain state of the law of executive privilege, they write,

          But critically, the question for a prosecutor deciding whether or not to charge Bannon with a crime is not whether Bannon’s interpretation of the law is correct or not. It is whether the department can prove to a unanimous jury beyond a reasonable doubt that Bannon did not believe his assertion of privilege to be credible.

          Proving crimes that require intent are challenging—but the DOJ does it every day. While I admire the scholarship and objectivity of Shaub and Wittes in defending the DOJ’s delay, there is one argument that dispenses with every nuance and ambiguity that may be causing Garland to dither. It is this: Whatever policies justify the existence of executive privilege to protect presidential deliberations, they do not protect conduct designed to overthrow the Constitution. Shaub and Wittes acknowledge that Garland could proceed with an indictment of Bannon under this rational:

For example, the department could simply take the view that executive privilege is not designed to cover up wrongdoing, and the entire January 6 episode implicates such wrongdoing and not the deliberative policy advice the privilege is concerned with protecting.

          And, of course, Biden has waived executive privilege as to the topics of Bannon’s testimony. That waiver also moots the complicated questions concerning the invocation of executive privilege by a private citizen who is directed to do so by a former president. On Thursday, the White House told former chief of staff Mark Meadows that Biden is waiving executive privilege as to the topics of Meadows’ anticipated testimony. The Special Committee has issued a warning to Meadows that he should testify Friday or risk contempt charges. Expect Meadows to follow Bannon’s lead and refuse to appear before the Special Committee. Unless Garland enforces congressional subpoenas through criminal contempt proceedings, the Special Committee’s report will be incomplete. It is long past time for Merrick Garland to act.

More on inflation.

          In response to yesterday’s discussion of inflation (Deflating inflation), many readers recommended Judd Legum’s excellent discussion in his blog, Popular Information, “How concentrated corporate power makes inflation worse.”  The thesis of Legum’s essay is that scarcity of goods combined with monopoly power allows some companies to profit from inflation—and exacerbate it at the same time. Companies claim they must raise prices because the cost of raw materials are increasing. But when those companies raise prices, they increase their profitability to record levels—thereby “profiting off inflation.” As Legum notes, “The costs of these price increases are often borne by those who can least afford them and the benefits go to wealthy shareholders and executives.” Check out the article for details on companies that are fueling inflation to raise profits.

          In response to the news of record inflation, the White House is defending the Build Back Better agenda with the claim that it will reduce inflation over time. See NYTimes, “Biden Says Spending Bill Will Slow Inflation. But When?” Per the Times,

          A wide range of economists agree with the president — but only in part. They generally accept his argument that in the long run, the bill and his infrastructure plan could make businesses and their workers more productive, which would help to ease inflation as more goods and services are produced across the economy. But many researchers . . . say the bill is structured in a way that could add to inflation next year, before prices have had time to cool off.

          Even if the White House is correct, Republicans have decided that inflation is a winning argument. See The Hill, “GOP sees inflation as winning issue.” Democrats have a heavy lift ahead of them to find the right messaging to respond to inflation. As noted in yesterday’s newsletter, there are good explanations for the current spike in inflation that involve recovering from the pandemic recession. Democrats need to begin working on those messaging points, ASAP.

Virginia School Board Members Suggest Burning Books

          Two school board members on the Spotsylvania County School Board in Virginia suggested burning books that parents claimed were sexually explicit. See Vanity Fair, “Conservatives Are Just Openly Endorsing Book Burning Now.” Of course, the practice of burning books has ugly antecedents from antiquity through pre-war Germany. In almost all instances, the suppression of ideas went hand-in-hand with violence and cultural extermination. It is not a practice that should be invoked in civilized society.

          We should recognize that statements of two school board members should not be attributed to the entire school board, or the Republican Party in general. But the comments were made in the context of the Republican Party’s push to make “parental control” over curriculum a key issue for 2022. The gravitational pull of authoritarianism is strong but subtle. If Republicans don’t care or can’t see that their assault on education is a step along a dangerous path, it is our moral obligation to call out their behavior—and demand that decent people of all political persuasions do so as well.

          If parents object to certain books being included in the curriculum, there are protocols for raising those objections. Burning books is an ugly call to suppression and violence.

Concluding Thoughts.

          The dilatory tactics by Trump and his allies are compounded by the inaction of the Department of Justice. Those who support democracy are frustrated and angry over the seeming inability to hold Trump accountable. As one reader said in an email today,

          My question is a simple one, with probably a complex answer.  When will there ever be accountability? What is it about the legal system that allows somebody to keep appealing repeatedly to avoid ever being accountable?  No wonder we are losing hope!  This is very discouraging. 

          I agree that the situation is discouraging, but we should not lose hope. There is still time to hold Trump and his accomplices to account for their criminal conduct. The best way to ensure that Trump does not escape accountability is to maintain control of the House, the Senate, and the Presidency. We can do that. If we do, it is only a matter of time before one of the cases against Trump gains traction and forces him to defend his actions in court. When that happens, his ridiculous defenses and baseless conspiracy theories will evaporate under exacting scrutiny of prosecutors, judges, and juries.

          So, as we work toward maintaining Democratic majorities in the House and Senate in 2022, remember that we are also maximizing the possibility that justice will be served and the interests of the American people will be vindicated. That is powerful motivation to win in 2022—in addition to everything else that is at stake. We must work harder than ever before. We can do that.

          Have a good weekend, everyone! Talk to you on Monday!