Today’s Edition: “The things we decide to do together.”

June 28, 2021

          The heartbreaking tragedy near Miami is continuing to unfold as I write on Sunday evening. The sudden collapse of a twelve-story condominium has shaken the city of Miami, the state of Florida, and the nation. These things are not supposed to happen. We live every moment of our lives trusting that the complicated web of steel, concrete, electronic signals, and social norms that make modern life possible will work seamlessly in the background to keep us safe. Buildings stand, traffic lights synchronize intersections, messages fly through the ether, drinking water is safe, bank accounts are secure, drivers stay in their lanes—all without fail, until the disaster strikes. We are safe most of the time because we have come together for our common good to agree on rules, standards, procedures, and norms. As Rep. Barney Frank said, “Government is simply a word for the things we decide to do together.”  It is increasingly fashionable in some circles to reject all government “intervention” in our lives, even when those rules and norms create the oxygen necessary for our civil liberties and create the safe infrastructure on which our lives depend.

          It is too soon to discuss the cause of the tragedy in Miami, much less to assign responsibility. In a real sense, the collapse is continuing and will continue until all survivors have been rescued and victims have been recovered. In the meantime, the tragedy should remind us that we take for granted the seeming stability of our world and our collective efforts that make it possible. My wife and I extend our condolences to the families who have lost loved ones, and we pray for strength and peace for those who are still waiting for word about family members.

Justice Department Sues Georgia Over Voter Suppression Laws

          Attorney General Merrick Garland announced on Friday that the Department of Justice had filed suit on behalf of the United States against the voter suppression bill recently passed in Georgia (the bill is referred to as “SB 202”). See NPR, “Justice Department Sues Georgia Over Its New Voting Law.” In remarks announcing the suit, Garland and Assistant Attorney General Kristen Clarke suggested that the DOJ would be filing additional actions in other states. Good. The complaint is here: United States v. Georgia. The complaint invokes Section 2 of the Voting Rights Act to seek an injunction against implementation of certain provisions of SB 202, including restrictions on absentee balloting.

          The DOJ should be applauded for its effort, but the suit faces a steep legal challenge. Why? Because Chief Justice John Roberts eviscerated the Voting Rights Act when he struck down Section 5 of the Act, which required preclearance of election laws in states (like Georgia) with histories of discrimination against voters based on race. See Shelby County v. Holder.  The DOJ’s lawsuit therefore relies on Section 2, which requires proof of discriminatory intent by the legislature—a tough legal challenge. See Ian Millhiser in Vox, “DOJ’s suit against Georgia’s anti-voting law is probably doomed.” The challenge may be even tougher because the case has been assigned to a recent Trump appointee, Judge J.P. Boulee. Judge Boulee comes from a white-collar securities litigation background with a BigLaw firm (Jones Day). There is little indication in his résumé of strong partisan bias, except (perhaps) his membership in the Federalist Society.

          The DOJ should continue to file suits under Section 2—even if it suffers a series of losses. Those losses will underscore the need for the Democratic caucus in the Senate to unite now to reauthorize the Voting Rights Act and to resurrect Section 5 of the Act to overcome Justice Roberts’ opinion in Shelby County v. Holder.

The infrastructure bill’s rocky start.

          Friday’s newsletter was titled, “Houston, we have a deal,” a reference to the bipartisan agreement on infrastructure that included an allusion to the ill-fated Apollo 13 mission. I thought it was a clever title, but it appears I was the only person who thought so. In any event, the problems with the bipartisan infrastructure bill started immediately after lift-off. In announcing agreement on the bipartisan bill, Biden said that he would sign that bill only if it was accompanied by a larger reconciliation bill that included everything omitted from the smaller bipartisan bill. Several Republican Senators felt blindsided by Biden’s apparent veto threat and said they were pulling out of the bipartisan deal. See Politico, “GOP infrastructure negotiators fume over Biden’s handling of their deal.”

          On Saturday, Biden issued an abject apology, saying that he had not meant what he very clearly said the day before. That apology was enough to placate the Republicans who threatened to abandon the bipartisan deal. See CNBC, “Infrastructure: GOP senators say deal can go forward after Biden walkback.”

          I am totally confused about the state of play. Nancy Pelosi and Chuck Schumer also said that there would be no bipartisan bill without a reconciliation bill. So, whose statement controls? Did Biden make a face-saving apology solely for the benefit of the Republican Senators who had the rug pulled out from under the feet by Biden? Does Biden’s walk-back also cover statements by Pelosi and Schumer?

          Biden will now begin the long, difficult process of convincing Senators Manchin and Sinema to support a larger reconciliation bill that they rejected when they signed onto the smaller bipartisan bill. Progressives in the Democratic caucus may threaten to withhold support for the bipartisan bill unless Manchin and Sinema support the reconciliation bill. Whatever happens, be prepared for lengthy and melodramatic negotiations on the reconciliation bill. But remember, Apollo 13 made it back to Earth. There is still hope!

Manhattan District Attorney to indict Trump Organization this week.

There are strong indications that the Manhattan District Attorney will indict the Trump Organization this week. See The Washington Post, “Trump Organization attorneys given Monday deadline to persuade prosecutors not to file charges against it.” Per WaPo, the prosecutor is focused on whether the Trump organization used “misleading valuations of its properties to deceive lenders and taxing authorities, and in whether taxes were paid on fringe benefits for company executives.” There is no indication that the D.A. will indict Trump.

          Trump remains exposed to two criminal investigations, including for his effort to convince the Georgia Secretary of State to “find” enough votes to give Trump a victory in Georgia. The Georgia investigation is being run by the District Attorney for Fulton County, Georgia. See CNN, “Georgia district attorney investigating Trump hires lawyer with expertise in racketeering cases.” At the federal level, Trump is referred to as “Individual 1” in the charging document that sent Michael Cohen to prison for concealing payments to adult film star Stormy Daniels. See The Hill, “Lieu: Trump is ‘essentially an unindicted co-conspirator’ in Cohen case.”

          In a disappointing development, the Federal Election Commission closed its investigation of Trump’s payments to Stormy Daniels on a party line vote in May of this year. See “Donald Trump's Legal Problems Over Stormy Daniels End as FEC Closes Probe.” The dismissal was the result of a 2-2 tie vote. One Democratic member of the FEC was absent on the day of the vote, an absence that presumably resulted in the dismissal. As Woody Allen said, “Showing up is 80% of life.” Given the dismissal by the FEC, any effort to hold Trump accountable for concealing payments to Daniels would be up to Attorney General Merrick Garland.

Bill Barr’s charm offensive.

          Bill Barr is the worst Attorney General in our nation’s history. He ruined his reputation with his stint with the Trump administration. He is now writing a book that seeks to revise history by making himself a hero who doggedly resisted Trump’s worst impulses. Barr’s service to Trump demonstrated that he should not be believed about anything. Even in Barr’s revisionist history, he portrays himself as a coward who was unwilling to stand up to Trump at a moment of crisis for the nation. See Talking Points Memo, “Barr Knew Election Fraud Claims Were ‘Bullshit’ But Wanted To Appease Trump.”

Concluding Thoughts.

          Many readers of the newsletter reside in the Miami area. I hope that all of you and your families are safe. I have heard from some readers in Miami with whom I regularly correspond. You are in our thoughts, and the thoughts of the nation.

          There are other large groups of readers in the Pacific Northwest, which is experiencing a punishing heat wave—including a high temperature of 108° Fahrenheit in Oregon. If you are in distress because of the heat, do not hesitate to call for help, and if someone offers help, accept it! And if you know an elderly person in the Northwest, please reach out to them for a safety check—and be persistent in offering help. It is a natural human tendency to refuse help when it is first offered. Recognize that fact and keep offering.

          As one reader said, the tragedy in Miami puts things in perspective. I agree. Let’s try to hold onto that perspective long after all survivors and victims are rescued and recovered.

          Talk to you tomorrow. In the meantime, take care of yourself and your friends, family, and neighbors.