Your civic duty.

June 24, 2022

No audio version due to travel.

          It is your civic duty as an American to watch the entire fifth presentation by the January 6th Committee. The link is here: C-SPAN, Fifth Hearing on Investigation of Capitol Attack. The hearing is two-and-half hours long but is well worth your time as a concerned citizen. When you have finished watching the hearing, there will be no doubt in your mind that Donald Trump personally directed the plot to overturn the 2020 election. And it features the “smoking gun” statement that removes all doubt about Trump’s corrupt intent. After senior leaders of the DOJ repeatedly told Trump there was no election fraud sufficient to overturn the election, Trump told them, “Just say it was corrupt, and leave the rest up to me and the Republican congressman.”

          You may have seen excerpts of today’s testimony, but they are no substitute for the compelling story of how Trump attempted to use the DOJ, the Department of Defense, and the Department of Homeland Security in his effort to overturn the election. Trump was relentless as he badgered members of the DOJ to grant the veneer of legitimacy to Trump’s claims of fraud. The hearing focused on the role of Jeffry Clark (a DOJ environmental attorney) to stage a hostile takeover of the DOJ after it resisted efforts to tell Georgia (falsely) that the DOJ had ”serious concerns” about the election in Georgia.

          Importantly, the Committee demonstrated that Jeffrey Clark was promoting the “election fraud” theory at DOJ as an adjunct to the “false electors” theory being promoted by Trump’s attorney, John Eastman, in the state legislatures. And Trump sat at the center of both prongs of the conspiracy, directing both Eastman and Clark.

          Trump’s plan to take over the DOJ by appointing environmental lawyer Jeffrey Clark as Acting Attorney General came within minutes of succeeding. Indeed, White House call logs refer to Jeffrey Clark as “Acting Attorney General” on January 3rd. But Trump’s plan was thwarted when the senior leaders of the DOJ threatened to resign en mass—and to take hundreds of DOJ senior leaders and US Attorneys with them.

          The coordinated resignation threat by Jeffrey Rosen, Richard Donoghue, and Steven Engel finally stopped Trump in his tracks. (He then resorted to violence on January 6th.) Their testimony places Trump at the center of the coup attempt and provides overwhelming evidence of guilt and provides witness to history. As with Rusty Bowers, America owes Rosen, Donoghue, and Engel a debt of gratitude for their actions to defend democracy on January 4th.

         But three weeks later, after the horror of January 6th, Rosen, Donoghue, and Engel were nowhere to be seen during Trump’s impeachment trial. Each had highly relevant and damning information that might have swayed the Senate in its decision to convict or acquit. Instead, they remained silent.

          As with all previous presentations, the hearing was masterful. Liz Cheney’s opening statement alone was worth the price of admission. Adam Kinzinger was a skillful examiner who knew when to lead the witnesses and when to allow them to speak on their own. We are truly fortunate that the members and staff of the January 6th Committee have risen to the moment.

          After the hearing, member Jamie Raskin said that the Committee was extending its hearing schedule because it is learning new evidence daily. That bodes well for the American people, and poorly for Trump. Read on!

DOJ / FBI search warrant of Jeffrey Clark’s home.

          If you watch the hearing in its entirety, the only question remaining in your mind should be, “When will the DOJ indict Donald Trump and his co-conspirators.” On Thursday, we learned that the FBI and DOJ executed a search warrant at Jeffrey Clark’s home and removed electronic devices. The timing of the raid was conspicuous, occurring the day before the Committee unloaded its evidence on Jeffrey Clark.

          As many commentators have noted, the DOJ had to convince a federal judge that Clark had possession of evidence of a crime. Jeffrey Clark was clearly involved in a conspiracy to overturn the election—a conspiracy directed by Donald Trump. If Jeffrey Clark is in possession of evidence of a crime, one of the participants in that crime is Donald Trump.

          Finally, we have concrete evidence that the DOJ is investigating Donald Trump for his efforts to overturn the 2020 election. Former prosecutor Barbara McQuade said on MSNBC that the raid indicates that the DOJ investigation is well underway, and possibly wrapping up. If so, that is good news, indeed!

          If Merrick Garland indicts Trump, it will be a shock to the system. I frequently say that the only thing worse for the country than prosecuting Trump is not prosecuting Trump. Today, Eugene Robinson expressed the same sentiment in the Washington Post, Opinion | It will be bad if Merrick Garland prosecutes Trump—and worse if he doesn’t. Robinson recognizes that Garland faces a difficult decision, even if the evidence of guilt is overwhelming. He writes,

[Garland] needs to understand that deciding not to prosecute would send a clear message to future presidents: Do whatever you like, and there will be no accountability. No consequences.

          We either have a nation governed by the rule of law, or we do not. Given the overwhelming evidence that Trump acted with corrupt intent to overturn the 2020 election, the answer is clear: Garland must indict and prosecute Trump. We finally have solid evidence that he is investigating Trump. That should be a welcome development for all Americans who care about the rule of law.

The Supreme Court’s ruling overturning New York’s concealed carry law.

          Justice Clarence Thomas eviscerated the plain language of the Second Amendment to rule that individuals have the right to carry concealed weapons in public for self-defense. The decision is an abomination and the spawn of Justice Scalia’s abomination in Heller v DC, which converted the collective right of “the people” to bear arms to secure a free state into an individual right of self-defense. Commentators will spill barrels of ink (and 10^20 electrons) analyzing the decision, but a good place to start is with Mark Joseph Stern in Slate, Clarence Thomas Just Declared Most Gun Control Laws Presumptively Unconstitutional.

          As Stern explains, Thomas established a new test for evaluating the constitutionality of gun control legislation. If the law interferes with the “plain text” of the Second Amendment, the law is “presumptively unconstitutional.” As Stern notes, the Second Amendment does not mention “self-defense,” which is the right Thomas claims is being impeded by New York’s concealed carry law. But that logical gap in Thomas’s holding bothers him not a wit.

          If the law is presumptively unconstitutional, then it can be saved only if the government can prove that the regulation “is consistent with this nation’s historical tradition of firearm regulation.” That “saving exception” is an impossible test because the “nation’s historical tradition” did not need to address assault rifles and machine guns. Thomas then writes that “any modern instruments that facilitate armed self-defense” are protected even if they did not exist until recently—like AR-15 assault rifles.

          Justices Roberts and Kavanaugh tried to make Thomas’s opinion sound less radical by emphasizing the many types of gun regulations not invalidated by the holding—e.g., licensing and registration requirements. Of course, those regulations were not before the Court and could not be invalidated in this holding. But the logic of Thomas’s majority opinion threatens almost every gun regulation that interferes with the imaginary “plain text” of the Second Amendment that does not mention “self-defense” but which serves as the linchpin of the ruling.

          Jennifer Rubin believes that some commentators are over-interpreting the reach of Thomas’s holding, citing a discussion with Professor Tribe. See Jennifer Rubin in WaPo, Opinion | The Supreme Court’s gun ruling is bad, but not for the reasons you might think.  Rubin writes that Thomas’s opinion

is not controlling because the concurring opinion from Justice Brett M. Kavanaugh and Chief Justice John G. Roberts Jr. effectively reels him in. Kavanaugh writes in the concurrence that the ruling “does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense.

          I rarely disagree with Jennifer Rubin, but I do here. Kavanaugh is talking about “objective licensing requirements” like completing a background check and filling out paperwork. Once those “objective” requirements are satisfied, any American can carry a concealed weapon in public for self-defense. There is no way to sugarcoat or minimize the centrality of that holding.

          As Republicans achieved a long-sought court victory to allow universal concealed carry of firearms, they permitted the Senate to pass a bill that does virtually nothing to restrict gun ownership (except limiting the rights of those convicted of domestic abuse). See CNN, Gun safety bill: Senate passes first major federal gun safety legislation in decades.

          On a day when gun safety advocates were knocked back twenty steps, they were granted a half-step forward by Republicans looking for campaign cover. The “bipartisan” announcement of the bill emphasized that the “commonsense” gun safety regulations in the bill “protect the constitutional rights of law-abiding Americans.” Every mass killer is a “law-abiding citizen” until he opens fire with a weapon no American should own. Forgive me if I do not join the victory celebration at Senator Chris Murphy’s office.

Concluding Thoughts.

          On balance, Thursday was a good day. The outstanding work of the January 6th Committee is increasing the likelihood that Trump will be indicted and tried. The ruling in NY Rifle and Pistol Club v. Bruen was expected, although the blatant illogic of Thomas’s decision could not have been fathomed. On Friday, we will likely learn that the rights recognized in Roe v. Wade have been abolished. That we expect the ruling will not reduce its sting.

          Conservatives have overreached in appointing the reactionary majority. They are issuing decisions that are badly out of step with the views of the American people and the needs of modern society. By basing their decisions in imagined “historical traditions” that did not exist or, if they did, reflect the privilege of a white patriarchy that was unjust in the past and intolerable now.

          In its overreach, the Court is sowing the seeds of its demise, which will be followed by a long-overdue reformation. That long-term hope may feel insufficient on Friday, but it is what we must hold on to with all our might. We can reverse these decisions by the Court, but only if we show the same half-century of resolve demonstrated by the opponents of Roe v. Wade. Our fight begins today; with any luck, it will be measured in years, not decades.

          Stay strong, get out the vote, abolish the filibuster, and expand the Court. That is all it will take to restore normalcy and restraint to the Court.

          Please forgive all errors; I wrote this newsletter while flying / traveling.

          Talk to you tomorrow!