Variations on a theme.

August 22, 2022

          Over the weekend, the stories featured in the media were variations on a theme of major developments during the last month. Although we should never underestimate the potential for surprise, it is likely that the political throughlines are set for the midterms. That is both good and bad for America and Democrats. The topics for debate have been identified and the rules of engagement have been set. Our job is to maintain focus and concentrate on executing the fundamentals of campaigning. Let the media do its job, which, in this instance, will consist of talking about the same half-dozen stories non-stop. The dearth of new information will force the media to resort to repetition, speculation, polling, and interviews with random voters who may—or may not—be representative of anyone.

          I don’t mean to fault the media in the run-up to the midterms. They will be working with a landscape that is essentially static while attempting to inject a sense of excitement and novelty into stories that are unlikely to experience significant developments before November. To set expectations, let’s look at a few of those stories. I will go out on a limb and give my non-expert view of what is likely to happen (or not) before November. Let me preface my discussion by saying I fervently hope I am wrong in every one of my predictions.

          It is unlikely that the DOJ will indict anyone in Trump’s inner circle (including Trump) before the midterms. Despite the excitement of the last two weeks, the objective evidence suggests that the DOJ is in the early stage of each of its investigations involving Trump. For example, in a filing last week, the DOJ said its investigation regarding the improper removal and retention of defense secrets was in the “early stages.” Nearly every Trump administration witness appearing before a federal grand jury was examined by the J6 Committee six to eight months ago. And the only grand jury subpoenas published in the press indicate that the investigations were opened in 2022 and that the subpoenas were issued in June.

          Don’t get me wrong; I am as happy as everyone else that the DOJ appears to be moving against Trump on multiple fronts. But it seems unlikely investigations opened in the spring of 2022 will result in indictments before November. I hope I am wrong, but I fear I am right.

The January 6th Committee.

          Although the J6 Committee has interviewed several senior Trump administration officials, it appears that they were examined about the possible invocation of the 25th Amendment to remove Trump from power between January 6th and January 20th. While interesting from a historical perspective, it didn’t happen and doesn’t bear on Trump’s criminal exposure. News that Mike Pence is in discussions with the Committee is promising, but Pence knows that his testimony will be videotaped and played by the Committee at the next hearing. We should expect that Pence will return to milquetoast form to avoid answering any questions that would put him on the wrong side of the Trump supporters he is courting for 2022.

          The January 6th hearings have been stellar, but it is difficult to see how they can add anything significant to their prior presentations—with the exception of blockbuster closing statements by Liz Cheney, Bennie Thompson, Jamie Raskin, Adam Schiff, and Adam Kinzinger.

The Fulton County Georgia investigation.

          Fulton County District Attorney Fani Willis is doing a tremendous job of pursuing Trump and his co-conspirators in Georgia. But she is currently presenting evidence to an investigative grand jury that does not have the power to issue indictments. When DA Willis believes she has sufficient evidence to indict, she must then impanel a new grand jury, present evidence, and ask for an indictment. See Georgia Recorder, Fulton grand jury probe of 2020 election conduct zeroes in on Trump’s inner circle. (“In contrast to a typical grand jury, the 23 members on the special grand jury do not have the power to indict anyone, but can make recommendations to Fulton County District Attorney Fani Willis.”)

          Though Rudy Giuliani testified to the Fulton County special grand jury last week, Senator Lindsey Graham has effectively delayed his testimony indefinitely. See ABC News, Appeals court puts pause on Lindsey Graham’s grand jury testimony in Ga. election investigation. We should expect similar delays from other highly placed witnesses in the Trump administration. But even if D.A. Willis believes the has sufficient evidence to indict without Graham (and others), she will need to convene a new grand jury and present her evidence. Again, not likely to happen before November.

The Mar-a-Lago search.

          As noted above, the DOJ says its investigation regarding the Mar-a-Lago search is in the “early stages.” And we should not expect that we will see any portion of the redacted affidavit by the FBI used to justify the application for the search warrant. Although Trump has mysteriously sat on the sidelines in the redaction dispute thus far, when he does engage in the process, it is likely that he will be granted appellate review by the Eleventh Circuit (at least). That means that Trump and the GOP will continue to make inflammatory statements about the lack of justification for the search of Mar-a-Lago for months or years to come as we await an indictment or release of the unredacted affidavit.

          BTW, although the DOJ will file its request for redactions next week, that will be a non-event as far as the public is concerned. (But that won’t stop the major news media from speculating about the redactions for days on end.)

The missing texts from the Secret Service, Homeland Security, and Department of Defense.

          It is not clear whether the DOJ has opened an investigation into the matter. The DHS Inspector General, Joseph Cuffari, is allegedly conducting a “criminal” investigation of the missing texts. But Cuffari was appointed by Trump, concealed the missing texts from Congress for more than six months, and ordered the USSS to stop its efforts to recover the missing texts—all of which seems suspicious, to say the least. The J6 Committee has accused Cuffari of obstructing its investigation into the missing texts. See CNN, Top House Democrats accuse DHS watchdog of obstructing investigation into missing Secret Service text messages.

          In other words, absent a whistleblower revealing the full story to a major media outlet, the date of accountability for this debacle is probably 4 years hence—and then only if Democrats retain the presidency in 2024. I hope I am wrong about the timing of an indictment.

          The Mueller Report. Last week, a federal court of appeals ruled the DOJ (under Bill Barr) improperly redacted sections of an internal DOJ memo evaluating whether Trump could be prosecuted for obstruction of justice. See HuffPo, Panel Rules Justice Dept. Wrongly Withheld Russia Probe Memo. We should expect Merrick Garland to seek review of this decision in the Supreme Court. Garland is an institutionalist, and even though defending Barr’s redactions may irritate every Democrat in America, Garland will argue that protecting the private deliberations of the DOJ is more important than revealing its internal thought processes regarding the prosecution of Trump. Again, I hope I am wrong!

GOP calls for violence and/or a “civil war.”

          Republicans (like Marco Rubio and Rick Scott) have given permission to online extremists in the GOP to call for violence. That trend will not abate, and the media will continue to give undue attention to the online rants of a few thousand right-wing influencers. Those calls to violence are wrong and should be prosecuted. That said, we should not assume that the proponents of that violence are likely to carry through on their threats—at least not many of them. As I wrote last week, if most of the threats of violence on the internet were realized, civilization would have been reduced to a smoldering ruin two decades ago.

          There has been a decided uptick in articles and books claiming that a “civil war” in America is near—or has already arrived. I disagree and have written extensively on my view about the resiliency and basic goodness of Americans that will prevent anything more than scattered violence by Trump supporters (which will happen!). Juliette Kayyem addressed the topic of the potential violence by Trump’s supporters in her recent article in The Atlantic, The Bad and Good News About Trump’s Violent Supporters.

          Kayyem’s article is a refreshing break from The Atlantic’s usual apocalyptic fare. Kayyem notes that “the bad news is that much of this talk [of violence] online is sincere.” But she notes that over time, the MAGA cult will dwindle to supporters whose overheated rhetoric “fizzles” on contact with reality. She describes how the MAGA threat will dissipate over time:

A win, at this stage, isn’t that Trump’s troops make an apology. It is that they remain an online threat, a cosplay movement, a pretend army that can’t deliver, whose greatest strength is in their heads rather than reality.

[¶]

But allow me at least a glimmer of optimism. “Sometime they’ll give a war and nobody will come,” the poet and author Carl Sandburg famously wrote. And the decline of MAGA looks something like that—just a smattering of people respond to the overheated rhetoric of Trump and his allies. If Trump’s supporters only end up cosplaying a civil war, that itself is a small victory.

          Dahlia Lithwick in Slate provides a slight counterpoint to Kayyem’s article, but makes a helpful point about the unresolvable debate over whether indicting Trump will be a “good” or “bad” development for the nation. See Dahlia Lithwick in Slate, We don’t need a Trump-inspired Civil War for things to get real bad, real fast. Lithwick writes,

One lesson to be derived from all this is that anyone who tells you not to prosecute or criticize or investigate Trump because you will anger his supporters is delusional. His supporters are already extremely angry. We don’t negotiate with toddlers or terrorists, and holding your powder because violent extremists threaten violence has never historically worked out for the sanity-based community.

          Lithwick is right. Whether to indict Trump is neither a political question nor a question of “keeping the peace.” The extremists in the GOP have taught us that resorting to court-approved processes like a search warrant is grounds for calling for violent attacks on the FBI and DOJ. You can’t negotiate with toddlers or terrorists. The decision to indict Trump is a question of fact and law. Prosecutorial discretion matters, but no part of that discretion involves being afraid of the putative defendant’s followers’ propensity for violence.

Concluding Thoughts.

          My wife and I spent the last four days babysitting one of our granddaughters while her parents were out of town. If you wrote to me or left a comment on a newsletter, there is a 100% chance I did not read it. If it is important / time sensitive, please resend. Apologies to all.

          I left out of the above list the factors that are likely to drive Democrats and Independents to the ballot box—the Biden legislative achievements, the Dobbs decision (reproductive rights), the Bruen decision (public carry of handguns), the GOP culture war on LGBTQ people, the GOP war on education, the GOP assault on the environment, and the GOP war on democracy. Each of those items deserves more attention—which I promise to give in the future (as I have in the past).      

          So, where does all of this leave us? In a good place. A recent poll shows that 57% of Americans believe that Trump acted improperly in removing classified documents from the White House, while 35% say they approved of his removal of such documents. As usual, the poll shows that Trump has a base of about one-third of Americans who will support him no matter what. But the interesting numbers appear among Independents—with 53% disapproving of Trump’s actions—and only 17% approving. Trump won in 2016 because he convinced 45% of Independents to support him.

          It is too early to place reliance on any polls, much less one poll. But the poll cited above has the feel of “truthiness” about it (to borrow Stephen Colbert’s phrase). Trump’s hard-core supporters aren’t deserting him, but persuadable Independents are rightfully horrified by Trump’s grave breach of national security. For all of the talk about Trump being in a strong position because of the Mar-a-Lago search, there are no polls that support that proposition (except for polls that compare Trump in a primary to other Republicans).

          So, with all of the above as a very long wind-up, Democrats have reason to be hopeful going into 2022, but no reason to be complacent. Don’t let the broken record of media coverage of a handful of stories that will not resolve before the election distract you. The real stories are the ones that I listed in the introduction to Concluding Thoughts. Those are the stories that will drive voters to the polls. Our job is to maintain focus and concentrate on executing the fundamentals of campaigning. If we do that, we can win. Don’t let anyone tell you differently.

          Talk to you tomorrow!