Today’s Edition, May 27, 2021

“Enough, again.”

         “Enough.” President Biden’s succinct response to the latest mass murder at the hands of a lone gunman says it all. In the most recent incident, an aggrieved and violence-prone employee apparently targeted co-workers at a transportation facility in San Jose. See San Jose shooting: Gunman who killed eight co-workers at transit facility knew victims well, mayor says.” Biden should have said, “Enough, again.” With sickening regularity, we declare that “This time is different; we must act.” Despite the earnest declarations, America seems powerless to stop the frequent mass shootings that afflict our nation. But we should not give up hope. There has been a strong shift in public opinion in favor of gun safety regulation, including universal background checks, a ban on assault rifles, and restrictions on concealed carry. See Pew Research, “Broad support for barring people with mental illnesses from obtaining guns, expanded background checks.” The National Rifle Association is in shambles and may be dissolved by a lawsuit filed by the Attorney General of New York.

          The two major barriers to gun safety legislation are a rearguard action by the GOP that is out of step with American voters and the regressive majority on the Supreme Court, which has elevated gun ownership over all other freedoms in the Bill of Rights. In the Court’s 2021-22 term, it will likely invalidate laws prohibiting concealed carry of handguns. See US News, “Supreme Court Agrees to Hear Major Gun Rights Case.” (The case “has the potential to significantly expand gun rights and limit states' ability to restrict the carrying of firearms.”) The obvious solutions are to make gun safety reform a campaign issue and to expand the Court to override the illegitimate appointments of Justices Gorsuch and Barrett. Though both actions will take time, we must continue to push for reform. We cannot predict when the tipping point will be reached, but we must be ready when the moment arrives.

          Given that there are at least 200 million guns in private ownership in America, reducing gun violence may seem like a futile task. But there are several promising avenues, including outlawing unregistered “ghost guns,” banning assault rifles (as was the law from 1994 through 2004), and removing immunity for manufacturers of firearms. In 2005, Congress granted gun manufacturers immunity from lawsuits by victims of gun violence—a unique protection for manufacturers against the intended use of their products. President Biden has called for the elimination of that immunity. See CNBC, “Biden calls for allowing lawsuits against gun-makers for shootings.” A related initiative is being sponsored by Brady United, which is focusing on the small percentage of gun dealers who sell most of the guns used in crimes (“crime guns”) in the US. See Brady United, “Combating Crime Guns.” Per Brady,

          [O]nly 5% of gun dealers are responsible for 90% of recovered crime guns. Irresponsible, negligent, or reckless business practices by gun dealers are the root cause of crime guns. . . . A comprehensive approach to ending gun violence addresses the supply side, specifically the gun industry and dealers who are contributing to and profiting from gun violence.

          The link above to Brady United includes fact sheets, contact forms for local legislators, and actions that concerned citizens can take now to help reduce gun violence. A handful of manufacturers and dealers are driving a majority of the gun violence in the US. Focusing on manufacturers and dealers is a smart way to accelerate a reduction in gun deaths. Many issues compete for our attention. Gun violence in the US is one issue that many people ignore because prospects for reform seem hopeless. We cannot give up. We owe it to the 17,341 Americans who have died from gun violence in 2021. Enough.

A watershed moment for environmental activism. 

          In a stunning victory for environmental activists, shareholders of Exxon Mobile elected at least two activist members to the board of directors of the largest fossil fuel producer in the world. See New York Times, “Climate Change Activists Notch Victory in Exxon Mobil Board Elections.” The two activist candidates ran on a platform of reforming the oil giant’s lobbying and renewable energy investments. Several shareholder resolutions were approved that called for reports on lobbying activities by Exxon Mobile and an increase in renewable energy investment. The Times’ article above notes the complicated machinations that led to the election of the environmental activists, but a key reason for success was support from the state retirement funds of California and New York—which are massive. That strategy may point the way to other reforms that are being blocked by small, sparsely populated states controlled by the GOP.

          The board tried to stave off the election of the environmental activists by promising to appoint a climate expert to the board. The board may have hoped that an empty promise—or appointment of a climate change denier—would be enough to defeat the activist candidates. The management of Exxon Mobile made a grievous miscalculation. If management has any sense, it will welcome the activist board members in a collaborative effort to shape the future of a company based on a fuel source that is threatening the planet. In the meantime, environmental activists should keep up the good work and strive to attain a majority on the board.

The Senate may use the filibuster to kill the January 6th Commission.

          For all of the talk about the filibuster, all it takes is the threat of its use to stall legislation in the Senate. In the next week, Republicans may be forced to use the procedure to kill the bipartisan commission to investigate the January 6th assault on the Capitol. See Slate, “The Senate is about to face its first real filibuster test.” Because the commission makes eminent sense and is a necessary step to defend democracy, Republicans are reaching new heights of hypocrisy to explain their reasons for opposing the commission. Mitch McConnell says that he opposes the commission because it will “debate things that occurred in the past [and would] continue to litigate the former president into the future.”

          Hmm. Let’s think about Mitch’s objections. When commissions are established to investigate attacks on the US, they must of necessity examine “things that occurred in the past” because . . . the attacks occurred in the past. Someone needs to explain “the arrow of time” to McConnell. His objection is like saying that the 9-11 Commission should not have investigated the terrorist attack on the World Trade Center because it happened in the past. The objection is absurd and nonsensical.

          As to the objection that the commission will “litigate the former president into the future,” someone should send McConnell a Xerox copy of a newspaper clipping about the nationwide efforts by Republicans to re-litigate the former president’s loss in the 2020 election by engaging in fraudulent “audits” of votes in GOP-controlled states. (I assume Mitch doesn’t use a computer since he appears to unaware of the massive media attention on the Maricopa County audit; hence, the need to send a Xerox copy.)

          It will be a dark and shameful day when Senate Republicans use the filibuster to deny the American people a bipartisan effort to understand the truth of the attack on the Capitol. In their effort to obscure the truth, they are serving the interests of one man—Donald Trump—who bears singular responsibility for inciting the attack. How can they look at themselves in the mirror?

A comment on the DOJ’s appeal of order to disclose the Bill Barr memo regarding the prosecution of Trump.

          Merrick Garland surprised everyone by appealing a ruling by Judge Amy Berman Jackson that ordered the release of the unredacted memo Bill Barr claims he relied on when deciding not to prosecute Trump for obstruction of justice. A reader sent a note asking for my views on why Garland’s decision makes sense. It doesn’t. Let me explain why.

          In normal times, the government has an interest in protecting the confidentiality of internal discussions regarding policy decisions (the “deliberative process privilege”). That privilege makes sense when the parties are acting in good faith. In considering difficult or controversial decisions, government officials should be able to express their views candidly and vigorously without fear that their comments will appear on the front page of the New York Times.

          Here, the parties who initially invoked the deliberative process privilege were not acting in good faith. Indeed, part of the claim that Trump obstructed justice involved his efforts to impede the DOJ’s efforts to investigate him. That fact alone should disqualify the application of the deliberative process privilege because Trump tainted the deliberative process at the outset. But it gets worse. Bill Barr also tainted the process by mischaracterizing the Mueller Report. And, according to Judge Jackson, lawyers at the DOJ working for Barr also mischaracterized the nature of their alleged “deliberative process” discussions in the memo. So, no one involved in the deliberative process was acting in good faith; rather, everyone seemed to be undermining the deliberative process to prevent a full and fair consideration of Trump’s liability for obstruction of justice.

          On those facts, it makes no sense for the current DOJ to attempt to defend the deliberative process doctrine. Just as the attorney-client privilege cannot protect conversations in which an attorney and a client plot a crime, the deliberative process privilege cannot protect discussions that are themselves part of an effort to obstruct justice. The DOJ’s brief asking for a stay of Judge Jackson’s decision is here, Defendant's Motion for Partial Stay. Although the brief is filled with high-minded language defending the deliberative process privilege, nowhere does the brief acknowledge that Trump attempted to obstruct the effort to investigate his crimes. And although the brief acknowledges that the DOJ made several “innocent” misstatements in describing the alleged deliberative process, it does not consider the policy implications of a deliberative process that is tainted by the actions of the subject of the process (Trump) and by the participants in the deliberative process (Barr).

For these reasons, I believe Merrick Garland has made a serious error in judgment in his haste to defend the honor of career DOJ officials who wrongly invoked the deliberative process privilege. The interest of the American people in the truth overrides the need to protect a dubious claim of deliberative process privilege.

Concluding Thoughts.

Two of the subjects of today’s newsletter—gun safety reform and climate change—share a challenge: Both require sustained, long-term commitment to achieve change. Because both problems seem intractable, it is easy to ignore them until a crisis strikes. Here’s the good news: You do not need to single-handedly carry the burden of achieving success on those issues. The even better news is that both issues have attracted a cadre of committed, talented, and effective advocates who are leading the way. But they need your attention and support.

Everyone feels overwhelmed with demands from worthy candidates and causes—I get it. But if you make an effort to pay attention to the organizations at the forefront of these causes, you can add heft and credibility to their efforts to shape policy by engaging in small acts of democracy. Consider signing up for the newsletters from leading organizations in the areas of climate change and gun safety. Educating yourself and keeping current is the first step in bringing about real change. We can do that.

          Talk to you tomorrow!