Today’s Edition: Remain cool, calm, and collected!

October 20, 2021

          Two stories dominated the news on Tuesday, both of which serve as a source of frustration for Democrats: the vote of the Special Committee to recommend contempt charges against Steve Bannon for defying a congressional subpoena and the shrinking size of Biden’s Build Back Better reconciliation package. Despite the frustrations, both stories can be viewed in a positive light. The action against Bannon represents one of the few concrete steps to hold leaders of the insurrection to account. True, the vote for contempt is a procedural move that may take years to bear fruit. But it demonstrates the resolve of the Special Committee to investigate the January 6th insurrection. As to the shrinking size of the reconciliation package, whatever bill emerges will help tens of millions of Americans and will dwarf the achievements of Trump and rival those of President Obama.

         So, as we discuss the complications and roadblocks of both stories, let’s not lose sight of the fact that the frustrating details are draped on a framework of positive news. We can’t expect to win every battle, nor should we expect that every win will conform to our idealized vision of victory. We are making progress. It is painful and slow, but it is progress, nonetheless.

Select Committee Votes to refer Bannon to DOJ for contempt charges.

          The House Select Committee voted to refer Steve Bannon to the DOJ for criminal contempt. The House must approve that referral by a majority vote. At that point, the DOJ will exercise its prosecutorial discretion in deciding whether to indict Bannon. When Biden said publicly that the DOJ should prosecute witnesses who defy the Special Committee, the DOJ issued a breast-thumping reminder of its vaunted independence (a virtue that nearly evaporated under mild pressure from Trump). As explained below, it is not a foregone conclusion that the DOJ will indict Bannon.

           Bannon bases his defiance of the subpoena on the doctrine of presidential executive privilege. There are flaws in Bannon’s defense that are likely fatal (discussed below), but many commentators are asserting that Bannon will automatically lose because (a) Trump is no longer president and cannot invoke executive privilege, and (b) Bannon was not a government employee at the time of the conversations allegedly protected by the privilege.

          Surprisingly, there is precedent for a former president successfully invoking executive privilege and for a private citizen relying on that invocation to refuse to testify. As noted in yesterday’s newsletter, the doctrine of executive privilege is complicated and nuanced. The issues are explained in detail in two articles by Jonathan Shaub in Lawfare, Executive Privilege and the Jan. 6 Investigation and How the Jan. 6 Committee Can Make It Easy to Prosecute Bannon for Contempt.

          Although Bannon’s reliance on the privilege may be in bad faith, he is not wanting for precedent that gives his claim a foothold on legitimacy. Thus, any hope that the DOJ will immediately indict and convict Bannon for criminal contempt is not realistic. Even if Bannon is indicted, he will be able to litigate the matter to the Supreme Court without fear of sanctions for acting in bad faith.

          Bannon’s legal defenses are likely to fail, and he will ultimately stand trial. Recall that the conversations at issue relate to (a) a political rally to “Stop the Steal”, and (b) an effort to overthrow the Constitution. Neither topic falls within the scope of matters protected by the privilege (“a president’s decision-making about official duties”). But adjudicating those issues could take years.

          The key to unlocking this conundrum lies with President Biden. Biden initially waived executive privilege as to 125 documents in the possession of the National Archives. He has not specifically waived the privilege as to conversations between Bannon and Trump, although a letter from the White House to Bannon’s lawyer suggests that the waiver as to documents also affected Bannon’s claim of privilege. If Biden wants to expressly waive the privilege as to Bannon-Trump communications, he should say so publicly in words of one syllable. That would accelerate the process more than any other action—almost.

          The quickest way to accelerate the process of accountability is for Merrick Garland to make prosecuting the leaders of the insurrection a priority for the Justice Department. Until that happens, the investigations by Congress will depend on the good will of former Trump aides—a group not known for cooperating with Congress. On Tuesday, Rep. Adam Schiff expressed the frustration of tens of millions of Americans who have lost patience with Merrick Garland’s failure to prosecute the leaders of the insurrection. See YahooNews, “Schiff ‘vehemently’ disagrees with Attorney General Garland’s reluctance to pursue Trump.”

          Bannon and Trump may be counting on the apparent indifference of the Justice Department to their first coup attempt. As always, I hope that Merrick Garland disproves my skepticism. I will gladly issue an abject apology if Trump is indicted for any one of the following: Inciting insurrection, pressuring Georgia to change its popular vote, extorting Ukraine, violating campaign finance laws in 2016, or obstructing justice.

          In the meantime, the action of the Select Committee in recommending criminal contempt against Bannon is progress. Slow and painful, but progress, nonetheless.

Manchin objects to specific programs in the Build Back Better reconciliation bill.

          For months, Senator Manchin has framed his objections to the reconciliation package in terms of a dollar limit. But in the face of pressure from progressives and the White House, Manchin has clarified his objections. Moreover, Democrats have begun to realize that some programs are simply unaffordable in light of Manchin’s arbitrary dollar limit. As a result, the White House and Democratic members of Congress have begun to identify specific programs that will be cut. See The Washington Post, “Biden tells Democrats that package of up to $1.9 trillion should be new target of talks.”

          Among the chief casualties of Manchin’s demands is the child tax credit for families earning over $60,000 per year (proving that Manchin has no idea how much it costs to provide for a family with children). Manchin is also demanding that the tax credit be denied to unemployed workers because . . . well, for no good reason. Denying the childcare tax credit to unemployed workers will make it less likely that they will be able to find employment. The reduction of the child tax credit will harm tens of thousands of families in West Virginia, the state that Manchin represents in the Senate. See Vanity Fair, “Joe Manchin Is About to Make Life Worse for His Own Constituents—And the Planet.”

          Other major casualties of Manchin’s arbitrary reductions include tuition-free community colleges and efforts to fight climate change. As noted in the Vanity Fair article (linked above), Manchin

is continuing to rail against provisions of the reconciliation bill that are crucial to addressing climate change, supposedly because of concerns that the shift to clean energy in the Biden plan . . . could cost jobs in the coal state of West Virginia.

          As noted in yesterday’s newsletter, Manchin receives dividends in excess of half of a million dollars annually from his coal processing businesses. Manchin has put those coal processing businesses in a “blind trust” managed by his son. Under that fiction, Manchin is ostensibly unaware of how legislation affecting the coal industry will affect the coal processing business managed by his son! That arrangement is an insult and a farce. See Will Bunch in the Philadelphia Inquirer, “Joe Manchin’s ‘blind trust’ is an utter farce.” Per Bunch,

         Manchin’s wealth isn’t in a blind trust in the sense that most people would understand that term. The senator knows that coal dollars are floating his boat. . . . [T]he corruption of Joe Manchin is the worst kind — the legal kind.

          Coal industry donors are being kind to Manchin now, but history will not be.  As bad as Manchin is, the real problem is that Democrats have a zero-vote margin of control in the Senate. We must make Manchin (and Sinema) irrelevant by electing more Democratic Senators in 2022 and 2024. Then we can be spared the drama and travesty of a Senator who received only 290,510 votes dictating which benefits hundreds of millions of Americans will receive.

Transgender official sworn-in as highest ranking government employee.

          Twenty-seven states have no laws prohibiting discrimination against transgender people. Many states actively discriminate against transgender people. Last week, Texas passed a law that restricts transgender people from participating in high school athletics. See Texas Tribune, “Texas sports bill targeting transgender youth heads to Gov. Greg Abbott.” A White House communications director issued a statement saying,

Our message to young transgender people in Texas and across the country: these hateful bills are bullying disguised as legislation, and President Biden and our Administration will always keep fighting for the full equality LGBTQ+ folks deserve.

          Against the continuing backdrop of government discrimination against transgender people at the state level, the Senate confirmed a transgender person, Rachel Levine, as a four-star admiral in the US Public Health Service Commissioned Corps. See BBC News, “Rachel Levine: Transgender official sworn in as four-star admiral.” Dr. Levine is the highest-ranking transgender person in the federal government.

          Dr. Levine’s confirmation is a positive step forward during a difficult time for transgender people. One day in the not-too-distant future, we will look back on laws that permit discrimination against transgender people and shake our heads in shame and bewilderment—just as we do with Jim Crow laws of the 1950s and 1960s, and the wave of stealth Jim Crow laws enacted in 2020 by Republican-controlled states.

Concluding Thoughts.

          The death of Colin Powell reminds us once again of how far the Republican Party has fallen. Over a long and ground-breaking career, Powell distinguished himself as Secretary of State, National Security Advisor, and Chairman of the Joint Chiefs of Staff. (He later said he regretted providing inaccurate intelligence to justify the invasion of Iraq.) He was also regarded as a mensch by all who knew him. Well, make that “all who knew him except Donald Trump.” On Tuesday, Trump issued a statement about Powell’s death that was rude, insensitive, and classless. See CNN, “Donald Trump (yet again) proves there's no bottom with his Colin Powell statement.” Trump said, in part,

He was a classic RINO, if even that, always being the first to attack other Republicans. He made plenty of mistakes, but anyway, may he rest in peace!

          Colin Powell represented the best of the Republican Party; Trump represents the worst. As always, no Republican condemned Trump’s repugnant statements on the passing of a dedicated servant of America.

          Powell published a list of “thirteen rules to live by” in his 1995 biography. The first two rules have particular relevance to those of us who feel that we are locked in an unfair fight to preserve democracy. Powell said,

            1. It ain’t as bad as you think. It will look better in the morning.

           2. Get mad, then get over it.

          I would add to Rule No. 2, “and then get to work.” There is no room in our fight for lingering despair or decisions made in anger. We are engaged in serious business, and we must remain cool, calm, and collected. We can do that!

          Talk to you tomorrow!