We cannot live in fear.
April 6, 2023
Before all votes were counted in Justice Janet Protasiewicz’s commanding win in Wisconsin, Democrats began to worry that the GOP supermajority in the legislature would impeach and remove the newly elected justice from office. The panic was created by the election of a Republican to the Wisconsin senate on Tuesday, a victory that gives the GOP enough votes to convict Justice Janet Protasiewicz in an impeachment trial.
The details of the threat are described by The Guardian, as follows:
[Dan Knodl] has said he would consider impeaching Protasiewicz, who is currently a circuit court judge in Milwaukee, if she remained on the bench there. He did not say whether he would consider impeaching Protasiewicz as a supreme court justice.
Should we take the threat seriously? Of course, we would be fools not to! Should we live in fear of that prospect? Absolutely not! In the immortal words of Brendan Sullivan, “We are not potted plants.” If the Wisconsin GOP decides to disenfranchise the one million plus citizens of Wisconsin who voted for Justice Janet Protasiewicz, those one million voters will have something to say about that development—and it will not be good for Republicans. Indeed, it would be electoral suicide for Wisconsin Republicans.
Justice Janet Protasiewicz’s election demonstrated that Republicans in Wisconsin are hemorrhaging support in major suburbs, a previous GOP stronghold. See this discussion by Steve Kornacki on MSNBC. Disenfranchising the voters in the suburbs of Madison and Milwaukee will do nothing to bolster GOP prospects in those former strongholds.
And then there is this: Imagine for a moment that the Wisconsin GOP decides to overturn the mandate of the people by removing Justice Janet Protasiewicz. Would those voters “go gently into that good night?” Or would they, for example, call for a general strike? Or walk out of state, county, and municipal offices to shut down the government? Or hold continuous massive demonstrations in front of the state Capitol? Or all the above?
(Hint to Wisconsin Republicans about your future if you remove Justice Janet Protasiewicz: Look at ongoing protests in Tennessee over the GOP legislature’s callous and underwhelming response to the mass shooting in Tallahassee last week.)
If Republicans in Wisconsin want to tell Democrats they have no voice in running the state in accordance with democratic rules, there is no reason for Democrats to support an institution that exists merely to oppress them. Do I think it will come to that? I don’t.
But it doesn’t matter what I believe about the likelihood that the threat will materialize. My point is that we cannot live in fear. We are not powerless, we are not potted plants, and Wisconsin Democrats are shifting the electoral landscape by championing reproductive liberty, protection from gun violence, and fair elections. That is a powerful combination of issues on which Democrats have the high ground—politically and morally.
We should resist every effort and all talk of impeaching Justice Janet Protasiewicz. But no one should live in fear of that development. Indeed, post-Dobbs, Democrats have been on a winning streak in which reproductive liberty has been front and center. See NYTimes, Wisconsin Rout Points to Democrats’ Enduring Post-Dobbs Strength.
But even if Republicans remove Justice Janet Protasiewicz, the Democratic Governor Tony Evers fills the vacancy by appointment. Article VII, Wisconsin Constitution - Ballotpedia (“The vacancy shall be filled by appointment by the governor, which shall continue until a successor is elected and qualified.”)
Details aside, if Republicans decide that we must have a political fight over whether elections matter in Wisconsin, then we must not shrink from that fight or live in fear. Indeed, if Republicans insist on forcing the issue, the sooner the better. They will lose; we will win.
And the same logic applies to the indictment of Donald Trump, where similar angst is driving public handwringing and second-guessing by commentators. Republican prosecutors in red-state counties across the nation are grumbling about indicting President Biden. Should we take the threat seriously? Of course! We would be fools not to. Should we live in fear of that happening? Absolutely not!
The lunatic conspiracy theories on which Biden might be indicted would be litigated through the US Supreme Court—which, as of this writing, still recognizes Article II of the Constitution. The theories being bandied about include a ludicrous allegation that Biden has “opened” the southern border when, in fact, he has (unfortunately) reimposed many of the Trump-era policies. See, e.g., Los Angeles Times, Biden's new immigration strategy expands on Trump border policy and continues Title 42.
What about “Hunter Biden’s laptop? Be my guest! Or claims that Biden runs an international pedophilia ring? GOP prosecutors couldn’t do more to drive persuadable Independents away from their fringe political leader, Donald Trump. Or a claim that private citizen Joe Biden was (allegedly) on a single conference call with his son in 2017 that discussed a Chinese energy investment? Last time I checked, “conducting business” is not a crime.
So, we cannot permit ourselves to be dissuaded from upholding the law because Republicans threaten to break the law. This point is made in a brilliant essay by Josh Marshall in his Editor’s Blog,
But let’s address the argument head on. Will all future presidents now face a gauntlet of post-presidential judicial scrutiny?
It’s worth remembering that Donald Trump is the first and only president in American history to attempt a coup d’etat to remain in office illegally and that was before any history of presidential prosecutions. The problem isn’t incentives. It’s Donald Trump.
It amounts to the same specious argument . . . “Don’t follow the law because we’ll break the law”.
We have no choice but to enforce the law; indeed, it is our duty if we want to maintain a civilized society governed by laws rather than brute force. So, can we please stop the collective handwringing about prosecuting Trump for something that every other American would be prosecuted for if they engaged in the same conduct? I, too, regret that the Manhattan indictment was first, but that is not Alvin Bragg’s fault.
After the rash of articles on Tuesday explaining how weak the case against Donald Trump is, supporters of the case made strong arguments that it is no different than other cases successfully prosecuted by Bragg. And on the key question of whether state or federal election crimes can be used to leverage misdemeanors into felonies, commentators with extensive experience in New York responded, “Of course, they can!” See Karen Friedman Agnifilo and Norman Eisen op-ed in NYTimes, We Finally Know the Case Against Trump, and It Is Strong.
With the release of the indictment and accompanying statement of facts, we can now say that there’s nothing novel or weak about this case. The charge of creating false financial records is constantly brought by Mr. Bragg and other New York D.A.s. In particular, the creation of phony documentation to cover up campaign finance violations has been repeatedly prosecuted in New York. That is exactly what Mr. Trump stands accused of.
So, depending on which legal commentator you cite, the case is “novel” and “weak,” or “routine” and “strong.” Here’s my advice: Let Alvin Bragg do what prosecutors do and stop worrying about bad faith attacks on the prosecution. Will Kevin McCarthy succeed in forcing Alvin Bragg to appear before a House committee? Maybe, but I doubt it. If he does, my money is on Alvin Bragg being able to handle himself.
But, as in Wisconsin, if House Republicans believe their path to victory in 2024 involves “defunding the FBI and DOJ” to rescue an indicted, twice-impeached, failed coup plotter who is raging against the trial judge, his family, and the prosecutor, Republicans have made the wrong bet. We should be confident in that assessment. After all, Trump lost in 2018, 2020, and 2022 using the same grievance-based script he repeated at Mar-a-Lago after his indictment.
So, let’s not obsess over the bad-faith, self-defeating tactics Republicans are using. If Republicans decide that we must have a political fight over whether former presidents are above the law, then we must not shrink from that fight or live in fear. Indeed, if Republicans insist on forcing the issue, the sooner the better. They will lose; we will win.
Miscellaneous positive developments.
There is more, but I have a low-grade fever and am being told I must cut this newsletter short. So, here are other stories worth perusing on your own:
From the AP: Gretchen Whitmer Strikes 1931 Abortion Ban From Michigan Law.
From Politico: Pence will not appeal ruling requiring him to testify to Jan. 6 grand jury
From ABC News: Johnson elected Chicago mayor in victory for progressives.
Concluding Thoughts.
This week sees the confluence of Passover, Easter, and Ramadan. To all of our friends and readers who are celebrating any of those holy observances, my wife and I extend our hope that the world’s religions can bring us together in the mutual pursuit of peace, justice, tolerance, and love for one another.
Talk to you tomorrow!
Re your link to: " NYTimes, Wisconsin Rout Points to Democrats’ Enduring Post-Dobbs Strength."
[not to nit-pick your excellent post, but as a reminder of the work we need to do about main stream media]
While the jist of the article is about the WI Supreme Court election result which I'm happily celebrating , I took exception as I often do to how they covered the story. We too frequently become complacent, inured, to their misleading framing of their reporting, and on-going, democracy-killing timidity. I just sent the following letter to the NYTimes Editor. (per Simon Rosenberg's admonition to "get louder", I write MSM frequently these days because I consider them to be a very big part of the problem in this country.):
To the Editor:
There is no way a "largely unified political left” by itself pulled off the very big victory in Wisconsin. Freedom to choose, free and fair elections that reflect the will of the people (not some artificially distorted districts that heavily favor one party) and democracy were at stake in this election. You don't get to 55.5% (and especially in Wisconsin) with just the "political left".
You site “issues of democracy” as motivating Democrats. What do you mean “issues of democracy”? Your timidity and reticence to actually say what is so clearly at stake — our Democracy — is astonishing. The majority of people — by no means just the “political left” — recognize the danger the extremist, anti-democratic Republican/MAGA minority is to this country and have rejected it — yet again.
Thank you for creating this newsletter when you are feeling sick, Robert. If you need to take a break and rest for a few days so you can get better, please do.
I did hear one interesting comment today about Judge Janet's victory in Wisconsin. One commentator said the Republicans were stunned that Democrats actually fought back during the campaign with some hard-nosed advertising and talking points. He said the reason the campaign got ugly is because the Republican candidate started using underhanded tactics and a smear campaign as they often do, so Judge Janet's campaign had to get hard-nosed and fight fire with fire.
This commentator said the Republicans were caught off guard because for decades, Democrats usually reacted in such a weak, ineffective way that they often lost these types of elections. It seems Republicans were not expecting to lose, because Daniel Kelly refused to concede despite losing by 11 points and looked very cranky while he gave the most crude, whiny, untruthful and pathetic speech I've ever heard from a grown man. His speech proved he is not fit to serve as a judge.