Captain Roberts Appears to Be Commanding a Leaky Ship

No, not the pirate Captain (Bartholomew) Roberts. He's long dead. We're talking about Captain John of the S.S. SCOTUS who, unlike Bartholomew, doesn't have the common decency to fly a pirate's flag as warning that he might just take away everything that matters to you.

The Chief Justice rarely seems to go more than a month or so without yet another embarrassment. And this weekend, he suffered a big black eye (maybe he should wear an eyepatch?). It wasn't directly his fault, per se, but he's cultivated a certain... culture on the Court. And, more broadly, the buck stops with him anytime the Court sh**s the bench.

For those who did not see it, The New York Times had a story based on conversations the paper had with Rev. Rob Schenck. Schenck used to be a hardcore evangelical and anti-abortion activist, and someone who traveled in the highest circles of those movements. According to the Reverend, who has since joined a different branch of Christianity and has moved away from his anti-choice past, he had advance knowledge of SCOTUS' decision in Burwell v. Hobby Lobby. That is the 2014 ruling that, among other things, allowed conservative-owned businesses to opt out of providing birth control to employees despite the mandate contained within the ACA.

The Burwell decision was written by one Samuel Anthony Alito Jr. That would be the same Samuel Anthony Alito Jr. who wrote the Dobbs decision. You know, the one that someone leaked several weeks early. Hmmmmmm... Alito insists his chambers are airtight, that he did not share information about Burwell with anyone and that he most certainly isn't responsible for the Dobbs leak. Of course, he would say that regardless of whether or not the Times' story is correct. And, for what it's worth, Schenck has e-mail and other evidence in support of his story, and also has no clear reason to lie.

Recall that when the Dobbs decision did leak, Roberts angrily promised that he would get to the bottom of the matter and that the perpetrator would be identified and punished. Since then... crickets. Perhaps he simply never found the answer he was looking for. Or perhaps he found the answer and decided he was best off burying that information. Whatever it is, the Chief Justice is now on Congress' radar. The Democrats want to know what Roberts has done to identify the Dobbs leaker and also what he knows about the apparent access to Alito (and other conservative justices) that certain outsiders seem to enjoy. If Roberts doesn't play ball, then an investigation may commence. As of Jan. 3, House Democrats won't be able to launch such an investigation, but Senate Democrats certainly can. And it's Senate Judiciary Committee member Sheldon Whitehouse (D-RI) who is carping most loudly about the leaky Court. So, Roberts & Co. might soon find themselves under a very uncomfortable microscope. (Z)

McCarthy Previews Some Score-Settling

Rep. Paul Gosar (R-AZ) shared a video that showed him attacking various Democrats with a sword, and killing Rep. Alexandria Ocasio-Cortez (D-NY). Do you think that such rhetoric helped encourage the attack on Paul Pelosi (which was actually planned as an attack on Speaker Nancy Pelosi, D-CA)? It's certainly possible. Maybe even probable.

Rep. Marjorie Taylor Greene (R-GA) has a long list of offenses against decency. Included among them is mocking Pride Month, aggressively denying that trans people exist (and harassing a colleague who has a trans daughter), claiming the Uvalde shooter was trans (so, apparently trans people DO exist), and warning that "in about four or five generations, no one will be straight anymore. Everyone will be either gay or trans or non-conforming." Call it the straight replacement theory. Do you think that such rhetoric helped encourage the attack on an LGBTQ+ nightclub this weekend that was perpetrated by a far-right militia member and that left 5 people dead? It's certainly possible. Maybe even probable.

Gosar and Greene both occupy positions of great power. And, as they say, with great power comes great responsibility. That's doubly true with two people whose power is paired with a very prominent public profile. The things they've said and the things they've tweeted would be enough to get a regular employee at a regular workplace suspended (or terminated). So, it's entirely apropos that the two members were punished by their colleagues and stripped of their committee memberships. Actually, that's kind of "slap on the wrist" territory compared to what would happen to someone in most other workplaces.

Aspiring Speaker Kevin McCarthy (R-CA) does not agree that it was apropos, however. If and when he gets the Speaker's gavel, he's going to restore Gosar and Greene to their committees. That's no surprise; he has to kiss the rear ends of the MAGA crew because he needs their votes for Speaker. Apparently, however, that is not enough. Whether it's to please the MAGA crew, or to please the Florida man from whom he takes orders, McCarthy is planning some payback against Democratic House members.

The Minority Leader has thus far identified three members he would like to cut off. The first is Rep. Eric Swalwell (D-CA), because (according to right-wing conspiratorial thinking), he's been compromised by China. The second is Rep. Adam Schiff (D-CA), because (according to right-wing conspiratorial thinking), he lied to the American public about the 1/6 insurrection. The third is Rep. Ilhan Omar (DFL-MN), because she's said antisemitic stuff. The only one of those that's remotely justifiable is Omar, although she's apologized for her ill-advised remarks. Further, it would be very.... interesting to strip Omar of her committee assignments on that basis, and then to restore Greene at the same time. After all, only one of them has ever ranted about Jewish space lasers, and it ain't Omar.

McCarthy is dithering over whether his plan is to strip them of all assignments or just to strip them of their most prominent assignment. At the moment, it looks like his notion is to boot the two men from the House Intelligence Committee and to boot Omar from all of her committees. But the would-be Speaker could change his mind at any time, depending on what Tucker Carlson thinks.

Of course, McCarthy can't do this by fiat. It would take a majority vote of all House members. If he can't even be certain that he can get 218 votes for himself, then it's likely an even taller order to get them for something as petty and obviously punitive as kicking Swalwell/Schiff/Omar to the curb. If just a handful of Republican members decide that this sort of tit-for-tat leads to a bad place, then that's all it will take to put the kibosh on the scheme. (Z)

Valadao Wins

One of the last remaining unresolved House races has been called by the AP. In California's 22nd district, Rep. David Valadao (R-CA) has defeated state Assemblyman Rudy Salas (D). With 98% of the vote in, Valadao is up 51.7% to 48.3%. It's not so easy to make up a 3.4% gap with only 2% of the vote left to count. So sorry, Salas.

The big storyline here is that Valadao is one of the 10 Republicans in the House who voted in favor of Donald Trump's impeachment, and yet he's lived to tell the tale. Only one other Republican can say the same; Rep. Dan Newhouse (WA) also voted to impeach Trump and yet kept his job. Of the eight impeachment voters who will soon be collecting unemployment, four lost their primaries and four decided not to run for reelection.

This is yet another indication of where Trump has actual political strength: in Republican primaries. In red districts, or red states, he can often help a MAGA candidate achieve victory over a non-MAGA candidate. But in purple districts and states, and in general elections, his power is largely broken. He's like the Headless Horseman of politics; a Republican just has to get across the covered bridge and they're OK. It's just a coincidence, incidentally, that the pumpkin that the Headless Horseman uses in place of a head is big and orange.

The call in CA-22 means that, in the eyes of most outlets, there are just four undecided races left. Here they are:

1. CA-03: Kevin Kiley (R) leads Kermit Jones (D), 52.2% to 47.8% with 71% reporting
2. CA-13: John Duarte (R) leads Adam Gray (D) 50.34% to 49.66% with 95%+ reporting
3. CO-03: Lauren Boebert (R) leads Adam Frisch (D) 50.08% to 49.92% with 95%+ reporting
4. AK-AL: Rep. Mary Peltola (D) leads Sarah Palin (R) and Nick Begich (R), 48.7% to 25.8% to 23.4% with 95%+ reporting

Nobody seriously doubts that Peltola will be reelected, and as we pointed out over the weekend, Frisch has already conceded in CO-03. Jones and Gray are both in bad shape. So, you're likely looking at three Republican seats here and one Democratic seat. If so, that leaves you with 222 for the red team and 213 for the blue team. (Z)

Special Counsel Decision Is Getting Mixed Reviews

When news broke this weekend that AG Merrick Garland had decided to appoint a special counsel, we were a tad underwhelmed. On the other hand, a number of readers wrote in and gave the thumbs up to the move.

The opinion pieces published thus far reflect this divide. Here are few folks who think Garland did the wrong thing:

• Jennifer Rodgers, CNN: When the issue of appointing a special counsel first arose, I was not in favor. I felt that a special counsel would delay things, and that there would be only a minimal, if any, benefit from the perception of independence from the DOJ that a special counsel brings. My feeling was that the costs in terms of delay were not outweighed by any benefit the appointment would bring in terms of the limited independence and resulting perception of fairness a special counsel brings to the table. I continue to think that the appointment was not legally necessary.
  
  
• Jeremy Stahl, Slate: Why is a special counsel appointment so good for Trump? The move could add months and possibly years of delay to a grand jury inquiry that experts say already produced more than enough evidence to indict him. The Trump indictment could be delayed to the point that he's able to mount a political comeback and hold off justice permanently by again claiming power, or Trump could merely receive a pardon by a different Republican president in 2025. If that happens, Garland's decision could prove largely to blame.
  
  
• Chuck Rosenberg, Politico: [I]n this highly contentious climate, could any appointed special counsel convince partisans that an investigation of Trump—perhaps the most polarizing figure in American history—is independent and unbiased? What, exactly, would DOJ gain in perception by handing the case off to someone else? If Trump and his cronies attacked the esteemed Bob Mueller—and they did—who as special counsel could possibly convince them that Trump was not being "persecuted?"

So, the general idea is that Garland sacrificed precious time in favor of a limited upside.

And now, some folks who think Garland did the right thing:

• Jennifer Rubin, The Washington Post: Ironically, Trump was betting that his announcement would somehow protect him from prosecution. Instead, it prompted Garland to take an additional step to diminish the argument that the investigations against him are politically motivated. That, of course, will not matter to Trump and his MAGA cultists, but it might provide a measure of reassurance to ordinary Americans that the Justice Department has gone the extra step to prevent the appearance of a political vendetta.
  
  
• Ruth Marcus, The Washington Post: Garland's goal was not to persuade the unpersuadable. It was, in the familiar language of the law, aimed at how a reasonable person would perceive the fairness of the investigation, and whether a reasonable person would think a special counsel was warranted under the facts at hand and the language and spirit of the regulations. It was telling that in this regard, Garland did not acknowledge that investigating Trump constituted a conflict of interest for the department—just that the circumstances had become extraordinary... logic suggests that the arrival of a hard-charging prosecutor is an ominous sign for Trump: [Jack] Smith didn't leave his job as a war crimes prosecutor in The Hague to preside over a non-case.
  
  
• Kimberly Wehle, The Bulwark: Although it is impossible to remove all hints of bias or conflict, or to depoliticize what will likely be a messy process if Trump is indicted, Smith's appointment takes President Biden and the office of the presidency as far out of the loop of a Trump prosecution as the law allows. For Garland, it's the office that counts. He was right to do so.

So, the general idea is that Garland ultimately gave up very little in order to make the investigation as fair as is possible, to send a message to those Americans whose minds weren't already made up a long time ago.

The one thing everyone agrees on is that the clock is ticking. If Smith is to have any hope of wrapping up a court case before the 2024 cycle really gets going, he's going to have to file charges in the first quarter of 2023. (Z)

Ma, Ma, Where's My Pa?

That, as many readers will know, was a slogan used by the Republican Party in 1884 in support of James G. Blaine (a.k.a. the continental liar from the state of Maine). He was running against Grover Cleveland, who may or may not have fathered a child out of wedlock.

Grover Cleveland is having a bit of a moment right now, thanks to Donald Trump's announcement that he's running for president again. You see, Cleveland won, lost, and won and now Trump is trying to win, lose, and win. So, Trump is practically a latter-day Cleveland, right?

Or maybe not. Since there are a lot of articles out there on this subject right now, most of them written by people who are not U.S. historians, we thought we'd run down the five presidents who tried to regain the White House after leaving office, with an eye to identifying any parallels for Trump 2024. Here they are, in chronological order:

1. Martin Van Buren (1844, 1848): The Little Magician, as he was known, was very upset to be kicked out of the White House after one term, especially since every other Democrat/Democratic-Republican to that point had served two terms. So, he tried very hard to get his job back. He contested his party's nomination in both 1844 and 1848, and when it became clear that the Democrats had moved on, he ran as a third-party candidate, choosing the leftiest party of his day, namely the Free Soilers. Undoubtedly, Democrats and Republicans alike are hoping that Trump doesn't pull a Van Buren and run again and again and again. But he could!
   
   
2. Millard Fillmore (1856): After the Whigs said "no thank you!" to renominating Fillmore, possibly because he wasn't really a Whig (he was chosen to "balance" the Taylor/Fillmore ticket), he went home and licked his wounds. Then, 4 years later, he ran as the candidate of the anti-immigrant Know-Nothing Party. A lot of people didn't like immigrants back then, and so he got nearly a million popular votes and 8 EVs (courtesy of Maryland). One could certainly imagine Trump striking out as a third-party, anti-immigrant candidate, since anti-immigrant rhetoric is the lion's share of his political program. However, there is currently no anti-immigrant third party for the former president to latch on to. So, he'd either have to create one or else latch on as a Libertarian (or some other existing third party) and then declare that party to be henceforward the anti-immigrant party.
   
   
3. Ulysses S. Grant (1880): Grant was wildly popular, and so easily won the White House twice. It did not hurt that the Democratic Party basically did not exist as a national entity during the times of his two runs. After leaving office, he took a world tour, and then decided he might like to be president again. At the 1880 Republican National Convention, Grant led in the early balloting, but couldn't get over the hump. Part of the opposition came from the liberal wing of the Party. Part of the opposition came from folks who believed no president should serve three terms. The General was the leader through a staggering 35 ballots, and then the opposition decided that they would unify to give the nomination to a non-Grant compromise candidate. That ended up being James A. Garfield, for whom the presidency was a real shot in the arm. Well, a shot in the gut.
   
   Of all the presidents on this list, it is hard to imagine one whose life and whose presidential circumstances are further from Trump's. (Z) was once asked to write a pithy message explaining the differences between the two men. Here is that message:

   One of these men took a strong stand against the KKK, and the other is Trump.
   
   One of these men was personally honest, and the other is Trump.
   
   One of these men served in the military when his country called, and the other is Trump.
   
   One of these men actually wrote the bestselling book that bears his name, and the other is Trump.
   
   One of these men won election on their own merits, without outside interference, and the other is Trump.
   
   One of these men was beloved by a large majority of his fellow Americans, and the other is Trump.

   In short, anyone who points to Grant as a template for Trump to follow is smoking something much stronger than the cigars that gave the General throat cancer.
   
   
4. Grover Cleveland (1892): Here he is, the one everyone's writing articles about. Often silly articles like this one that focus on superficial similarities like "They both married younger women" and "They both relied on the South."
   
   The truth is that Cleveland doesn't have much more in common with Trump than Grant does. Although the Gilded Age was not a great time for Democratic candidates in general on the national level, Cleveland was very popular. He locked down the conservative wing of his party, and also managed to get a fair number of votes from liberal Democrats and conservative Republicans. Consequently, he won the popular vote all three times he ran. And when he tried (successfully) to reclaim the White House after a term spent on the outside looking in, he had every reason to believe he would win against the unpopular incumbent Benjamin Harrison.
   
   
5. Theodore Roosevelt: Of the five, this is the real parallel worth paying attention to. TR and DT don't have that much in common, personality wise, but they do/did both have the most massive egos in the country. When Roosevelt decided, after four years in the wilderness (literally; he went on safari) that he'd like to be president again, he eventually figured out that his successor and former protégé William Howard Taft was in firm control of the GOP machinery. So, TR struck out and formed his own third party, the Bull Moose (a.k.a. Progressive) Party. The Rough Rider didn't expect to win; he just wanted to stick it to Taft.
   
   This strikes us as a very plausible path for Trump to follow. He could decide that the Republican Party isn't going to nominate him and could form his own organization. The MAGA Party, presumably, although Know-Nothing is not currently in use and would be apropos on multiple levels. In any event, he could raise his grifty funds, and hold his rallies, and stick it to Ron DeSantis (or whoever the Republican nominee is), and declare a win when the Republican nominee did poorly. That is probably the only win available to Trump in 2024.
   
   The one problem is that, unlike in TR's time, it's not easy to get a third-party on the ballot. And most states don't allow write-ins. One conceivable option is to run as the candidate of the Constitution Party, which is on the ballot in a few states and for which he is actually a very good ideological fit. Doing this would be easier than starting a new party, but still a longshot. So, Trump would have to decide very soon if he's going to strike out on his own.

We shall see if The Donald tries to channel his inner Roosevelt. After all, you can't spell T-R-U-M-P without T-R.

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