What you fight for matters.

January 6, 2022

[Audio version here]

          During the U.S. War of Independence, a plurality (but not a majority) of colonists supported independence, while others remained loyal to King George III.  Others switched loyalties depending on which side appeared to be winning the war.  Although there were many reasons for the American victory, the motivations of the competing sides played an important role in the outcome.  The colonists were fighting for independence, personal liberty, and their homeland.  British forces were fighting to maintain economic control over an income-producing asset—one of many scattered across the globe.  It turns out that what you are fighting for matters.  It matters to your dedication, willingness to sacrifice, and ability to endure over the long term.  So, too, with the current struggle for the soul of America encapsulated in the January 6th insurrection.

          Those who resorted to violence on January 6th are driven by a desire to deprive others of full participation in the promise of American democracy.  They seek to limit the right of minorities to vote free of artificial constraints and arbitrary obstacles.  They seek to deny elderly and poor Americans access to healthcare.  They seek to strip women of control over their bodies.  They seek to discredit the role of science and education in society.  They seek to free businesses from any responsibility for protecting our ailing environment.  Above all, they seek to re-establish an unjust system in which the color of a person’s skin and amount of money in their pocketbook determines access to justice, equality, and due process under the law.  They are against everything and stand for nothing—except preventing the future from overtaking them.  It is a losing battle.

          Those who seek to defend democracy are motivated by a desire to realize the full promise of the Constitution for all Americans.  They want everyone to exercise the right to vote freely and fairly.  They promote access to healthcare for the poor and elderly.  They see science and education as allies in the effort to remain competitive and healthy in a globalizing economy.  They respect the right of women to make choices about their bodies.  Above all, they want all Americans to be treated with justice, dignity, and equality under the law.  Those who defend the Constitution still believe in the promise of America—and that its best days are yet to be.

          As between those competing motivations, which is more likely to prevail over the long term—those who are revolting against the future, or those who are brave enough to embrace it?  Larry Tribe has a quote by Anand Giridharadas pinned to his Twitter account.  It says,

          We are living through a revolt against the future.  The future will prevail.

          The future will prevail.  Those who attacked the Capitol on January sought to turn back the clock on American democracy.  They failed, but they have not relented—and their monomaniacal zeal causes anxiety and doubt in defenders of democracy.  It should not.  We are motivated by principles that point the way to a future America that is more just, tolerant, and fair.  We will outlast them, even if we must suffer hardship and sacrifice along the way.  Democracy will endure so long as we remain constant in our defense and confident in the outcome.  It will not be easy; it never is.  The fact that defending democracy is hard is not an excuse to surrender.  Rather, it is the cost of liberty that each generation must pay.  So, let’s get to work!

Merrick Garland’s speech on the first anniversary of January 6th.

          Merrick Garland finally broke his silence on the January 6th investigations.  The full speech is here: DOJ, “Attorney General Merrick B. Garland Delivers Remarks on the First Anniversary of the Attack on the Capitol.” The speech was limited to the violent assault on the Capitol on January 6th and did not address the broader effort to overturn the election.  As to the former, Garland said,

          The Justice Department remains committed to holding all January 6th perpetrators accountable under law…whether they were present that day or otherwise responsible for the attack on our democracy.

          That statement should be taken at face value for two reasons.  First, whatever criticisms we may have of Garland, he is universally regarded as a man of integrity.  We should believe what he says.  Second, we have no other choice.

          Legal commentators have been critical of the speech, noting that it did not address Trump’s efforts to interfere with state-level certification of electoral votes or pressure on V.P. Mike Pence to reject legitimate electoral ballots.  That might be an understandable limitation given that it was a speech about the assault on January 6th.  But one commentator noted that Garland’s defense of the “well-worn” prosecutorial technique of “building a case from the ground up” is going too slowly given Trump’s demonstrated penchant for the destruction of evidence and witness tampering.  The same commentator, Seth Abramson, noted that the complete absence of any indication of grand jury activity relating to Trump and other senior officials strongly suggests that prosecutors have yet to open an investigation into Trump.  Senior DOJ alumni who read this newsletter strongly disagree with that analysis and conclusion.  Read Seth Abramson’s analysis to judge for yourself.

          Whether Garland’s speech will be remembered as a principled and prudent defense of DOJ impartiality or empty words to excuse his inaction will be determined entirely by whether any instigators of the January 6th insurrection have been charged a year from now.  At the moment, Merrick Garland has given his word that he is investigating “all perpetrators . . . whether they were present that day or otherwise.” Let’s hope that the promised investigation does not drag into the 2024 presidential campaign season, which begins a year from now.  That will make it immensely more difficult to charge Trump if he runs for president.

Podcast Interview with Field Team Six founder Jason Berlin.

          I have frequently promoted Field Team 6 as a way for readers to get involved in voter registration.  Readers who have volunteered with Field Team Six rave about their experiences.  Jason Berlin is the founder of Field Team 6 and will be the featured guest on Today’s Edition Podcast on Saturday, January 8th at 2:00 PM Eastern / 11:00 AM Pacific.  You can listen live and participate in the discussion on the Callin app (for iPhone/iPads) or listen to the recorded version after January 8th here: Today’s Edition Podcast, “Field Team Six / Jason Berlin.”

          To whet your appetite, watch this video interview with Jason Berlin on New Faces of Democracy, a terrific site that highlights people like you and me who are in the trenches defending democracy.  If you ever need a “pick me up,” listen to one of the interviews of New Faces of Democracy.  You will be inspired!

Correction: Trump did not appoint all of the bad judges.

          Yesterday, I wrote that federal judge Reed O’Connor was a Trump appointee.  (O’Connor was the judge who told Navy Seals they could defy the Navy’s vaccine mandate).  In fact, Judge O’Connor was appointed by George W. Bush in 2007.  I went to the trouble of looking up who appointed O’Connor before writing the story, noted that he was appointed by Bush, and then wrote that he was appointed by Trump.  I am sure that there is some deep-seated psychological reason for that error, but whatever it is, I don’t want to know about it.

          I heard from dozens of attorneys who pointed out my error.  Two attorneys said they have practiced before Judge O’Connor, and confirmed he is as bad as described in my newsletter.  So, at least I got that part right!

GOP Senators float the idea of amending the Electoral Count Act.

          I don’t know what to make of this story, but I suspect it will become more important over time, so I am alerting you to its existence.  Majority Leader Chuck Schumer will call for a vote to change Senate rules to allow the John Lewis Voting Rights Advancement Act to be brought to the floor of the Senate for debate and vote.  In response, several GOP Senators have suggested that the Senate amend the Electoral Count Act, which controls how Congress counts the electoral ballots for president.  The Electoral Count Act is a constitutional mess and judicial disaster waiting to happen.  It is sorely in need of updating.  Sounds like something everyone should be able to agree on, right?

          But Democrats are suspicious that amending the Electoral Count Act is a diversion intended to defeat the John Lewis Act in exchange for the uncertain promise of amending the ECA.  There may be more to this story, but I don’t know what it is.  For background, read Talking Points Memo, “Several Republican Senators Are Suddenly Open To Electoral Reform.  Dems Are Skeptical.”

Concluding Thoughts.

          Republicans are revolting against the future.  The future will win.  But the future is contingent on actions we take today.  Everything we do matters, regardless of whether we can measure our contributions in votes or polling or fundraising or control of Congress.  Embrace the future by seizing the present—in whatever way you can.  If we all do so, we cannot fail.

          Talk to you tomorrow!