Weekend edition.

December 9, 2023

          Hi, all. This short edition of the newsletter is intended to provide a glide path into the weekend amidst a turbulent news environment.

D.C. Circuit upholds Judge Chutkan’s gag order—but excludes protections for Jack Smith.

          In a significant victory for Jack Smith, the D.C. Circuit upheld most of Judge Chutkan’s gag order against Trump. The opinion is here: US v Trump | DC Circuit | 2023-12-08. The D.C. Circuit narrowed the gag order to remove prohibitions against attacks on special counsel Jack Smith. The operative language is here:

[T]the Order is affirmed to the extent it prohibits all parties and their counsel from making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding.

The Order is also affirmed to the extent it prohibits all parties and their counsel from making or directing others to make public statements about—

1. counsel in the case other than the Special Counsel,

2. members of the court’s staff and counsel’s staffs, or

3. the family members of any counsel or staff member—if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is highly likely to result.

We vacate the Order to the extent it covers speech beyond those specified categories.

The opinion also addressed Trump's suggestion that the need for the gag order could be obviated if the trial was delayed until after the election. The D.C. Circuit panel wrote,

Delaying the trial date until after the election, as Mr. Trump proposes, would be counterproductive, create perverse incentives, and unreasonably burden the judicial process.

In addition, postponing trial would incentivize criminal defendants to engage in harmful speech as a means of delaying their prosecution. Mr. Trump has repeatedly asked to push back the trial date in this case for two additional years, and the district court has considered and denied those requests.

Delays also “entail serious costs to the [judicial] system . . . and frustrate the public’s interest in the swift resolution of criminal charges.”

          The rejection of Trump's request for delay is encouraging. If the D.C. Circuit applies the same rationale to Trump's pending appeal regarding his presidential immunity defense, the D.C. Circuit should grant expedited consideration and disposition of Trump's appeal. It would then be up to the US Supreme Court to determine if it will stand in the way of a trial on the insurrection charges before the 2024 election.

A note on the Comment section.

          For the last two years, the Comment section has provided a thoughtful, supportive, welcoming community for discussing issues raised in the newsletter. The emotions of the last eight weeks have resulted in comments that are more emotionally charged, lengthier, and argumentative (on a range of issues, not just the October 7 terror attack and the Israel/Hamas war). The number of reported “abusive” comments has increased, and I have deleted more comments in the last two weeks than in the last two years.

          I am determined to maintain the Comment section as a thoughtful and supportive community. So, a few clarifications and requests:

• Feel free to disagree all you want and engage in vigorous debate but please do not direct personal comments at other readers. If that happens, I will delete the comment and ban the person who posted the comment.

• Avoid lengthy arguments between small groups of readers. Doing so takes over the Comment section, diminishes the tone, and displaces comments from other readers. If you find yourself making your tenth reply to another reader, you are engaged in an argument, not a discussion. Where is the appropriate line between ten replies and two? I don’t know, but you do. Readers who take over the Comment section with lengthy intramural arguments will be suspended to give others space to make their voices heard.

• If you observe abusive comments, resist the temptation to reply with “I am offended . . . .”, which will only invite an angry rebuttal. Instead, click on the three dots (. . . ) to the bottom right of the Comment and select “Report Abuse.” If appropriate, I will delete the comment and ban or suspend the user per the above.

       It pained me to write the above, but I had to shut down the Comment section today. I have noticed that many long-time, loyal, thoughtful readers have stopped posting over the last week—presumably because they have been off-put by those who are being aggressive in the substance, tone, or unreasonable frequency of their comments.

          I invite you to use the Comment section to discuss, exchange views, and disagree with a civil and thoughtful dialogue. Help me sustain the supportive community in the Comment section that has become an important part of this newsletter’s mission.

A quick note on reader reaction to the testimony of the three university presidents.

          I received many emailed responses to my report on the testimony of the university presidents at a congressional hearing on antisemitism at Harvard, MIT, and Penn. The overwhelming response was to disagree with my views.

          With few exceptions, those who wrote said that (a) in context, the statements by the presidents were appropriate in condemning hate speech and refusing to preemptively ban a call for genocide, and (b) the First Amendment (and related free speech rights on university campuses) protects the right of university students to call for the genocide of Jews (or any other group). Most argued that protecting free speech in an absolute manner would ultimately protect the rights and safety of persons who are targets of hate speech and inure to the benefit of democracy and civic discourse more generally.

          I don’t agree with the premise of the above but have given a fair report on the views expressed.

          I responded to some of those many comments as follows: After October 7, arguing that it is not harassment to call for the genocide of Jews is not tenable. (It wasn’t before, either.) The Holocaust is within the living memory of the immediate family members of most Jews. October 7 has resurrected those memories. We cannot ignore that reality in evaluating the harassing nature of a call for the genocide of Jews. Surely, that historical fact must be considered. If it is, I believe there is no doubt that a call for the genocide of Jews is harassing speech that should lead to discipline of university students.

          To be clear, I would support the same result for a call for genocide directed at any group.  

          I understand that many readers disagree with my views for the reasons summarized in the first paragraph above. Feel free to send further notes of disagreement, but having responded to many such notes, I likely will not respond further (pending additional developments).

Another great jobs report!

          The Bureau of Labor Statistics released the November jobs report—seasonally adjusted! It was another strong report. See Vanity Fair, Fox Anchor, Through Gritted Teeth, Admits Biden’s Economy “Is a Lot Stronger Than Anybody Understands”.

        Simon Rosenberg created a great graphic illustrating the following fact:

• Since 1989, 50 million jobs have been created in America. 48 million of those jobs, 96%, have been created under Democratic Presidents. 2 million, 4%, were created under Republicans.

The graph is here: Simon Rosenberg, Hopium Chronicles.

          Tell a friend!

Opportunity for reader engagement.

          Walk the Walk USA is a network of contributors in 47 states who combine resources to power grassroots engagement in the most competitive races in the nation. Walk the Walk sent the following note inviting reader engagement:

Please join Walk the Walk USA this Thursday, December 14 at 5:30 PST / 8:30 EST.  Meet its grassroots partner We Are Down Home North Carolina and hear about Walk's national strategy in critical districts. With passage of Medicaid Expansion in 2023, our partner will be doing deep canvassing to enroll 600,000 newly eligible people for Medicaid and register voters.  This is an opportunity to break the supermajority in the state legislature. Sign up here!

Concluding Thoughts.

          Republicans are like the dog that caught the car. Special counsel David Weiss filed an abusive, over-reaching indictment against Hunter Biden. You would think that Republicans would be happy. Not so! The Chair of the House Oversight Committee, James Comer, was bitterly disappointed and told Jake Tapper that the indictment was part of an effort to “protect Hunter Biden.” That makes sense because . . . ??

          See the following clip (identified by Joyce Vance) in which Jake Tapper’s jaw hits the floor:  Tapper: "He indicted him to cover it up?"

          The fact that Comer was reduced to such humiliating arguments is proof that Republicans got nothing on Hunter Biden, Joe Biden, or the mythical “Biden Crime Family.” But we knew that already.

          Talk to you on Monday!