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Fili-bust-er or Fili-bluster?

On the matter of the filibuster, the time has basically come to put up or shut up. The Senate is back in session and while there is obviously no formal deadline for action, there is a practical one. While it was entirely possible to put Build Back Better on the Back Back Burner, the purpose of changes to the filibuster is to allow the Democrats to pass voting rights legislation. The rules need to be in place ASAP, given that election planning is already underway, and also given the inevitable lawsuits that any new rules will trigger, and that will need to be resolved.

Anyhow, Democratic pooh-bahs know that this is the week that the rubber hits the road. There is so much arm-twisting going on in the back halls of the Senate right now that a WWE match might just break out. Joe Biden will be in Atlanta today for a speech on the matter. And Senate Majority Leader Chuck Schumer (D-NY) is going to hold two votes this week, on the Freedom to Vote Act and on the John Lewis Voting Rights Act. Then, when those both get filibustered by the Republicans, Schumer is going to move to amend the filibuster.

The main point here, as we have pointed out many times, is to put pressure on Sen. Joe Manchin (D-WV). And the problem with that plan is that the West Virginian not only withstands pressure quite well, thank you very much, but it also tends to make him cranky and to push him in the other direction (see the aforementioned Build Back Better bill). Obviously, Schumer has access to information we don't have, but this certainly does not look promising to us from our outside view.

And Manchin isn't the only problem, either. There's Sen. Kyrsten Sinema (D-AZ), as everyone who follows politics knows. And there are also other Democratic senators who have been content to let Manchin/Sinema take the heat, but who are also leery. Mark Kelly (AZ) is tapping the brakes a bit right now, and says he's not sure how he feels about the filibuster. Chris Coons (DE) says he's "seriously weighing" how to vote. Jeanne Shaheen (NH) prefers to be cautious, though it's not entirely clear what that means. Jon Tester (MT) is open to change, but only certain options, and not carve-outs.

It certainly appears that if anything is going to happen, it's going to be the reestablishment of the Jimmy Stewart-style talking filibuster, which is about as moderate a change as is possible. It is also not something that the members who claim to be defenders of "Senate tradition" can complain about, since the talking filibuster was in place for longer than the non-talking filibuster has been (133 years vs. 51 years). However, it should be pointed out that the reason the talking filibuster was eliminated was in order to allow the Senate to get more business done (since no other bills could be considered while Strom Thurmond read the Charleston, SCm white pages—and we do mean white). A reversal would make the upper chamber even less productive, and it's already got plenty of problems on that front. This sort of inside baseball is not likely to come up in interviews on Meet the Press, but it's absolutely the sort of thing that could influence some members' votes.

In any case, Friday would appear to be D-Day. Or maybe we should say F-Day. You can have your choice of letters that appeared on Donald Trump's report cards. (Z)

Heat on Trump Keeps Slowly Increasing

A couple of times, we have mentioned the old "Ripley's Believe It or Not" nugget about how if you put a frog in cold water and slowly increase the temperature to boiling, the frog will fail to notice the change and will boil to death. You shouldn't "believe it," because it's not true. However, it is a useful way to present the sorites paradox, first posed by Eubulides of Miletus around 2,500 years ago. "Sorites" is the Greek word for "heap," and what Eubulides wondered is when you have a heap of sand, and you take sand away grain by grain, how many grains have to be gone before it ceases to be "a heap"? And, alternatively, if you start with one grain of sand, and then add a second, and a third, at what point does the accumulation become "a heap"?

We mention this because the temperature in TrumpWorld is rising, just as with the water holding the apocryphal frog. And as the former president suffers more and more legal setbacks, he is eventually going to have enough trouble on his hands to constitute a heap. Indeed, we may already have reached the heap stage. Someone should get out a Ouija board and ask Eubulides what he thinks.

There were two more adverse developments for Trump on the legal front on Monday. To start, Judge Amit Mehta held a 5-hour hearing as part of a trio of lawsuits, one of them from Rep. Eric Swalwell (D-CA), that seek damages from the former president—and, in some cases, other Republicans—due to actions taken on January 6 of last year. There are an additional six lawsuits on the same matter that have yet to reach a courtroom.

The causes of action in the nine suits are that Trump is directly responsible for harms inflicted on that day and/or that he knowingly and deliberately failed to take action in response to the rioting and so is in violation of Section 6 of the Ku Klux Klan Act. That section of the Act, which is now more properly known as 42 U.S. Code 1986, was intended to punish approving politicians and law enforcement officials who deliberately looked the other way while the KKK did its business. However, it certainly seems to apply to Trump's behavior on Jan. 6. After all, he certainly knew what was going on, and he certainly sat on his hands for a couple of hours. The only element at all in dispute is whether his inaction came because he approved of what the rioters were doing.

In any event, Mehta is trying to figure out whether the suits should be allowed to proceed, and he had some probing questions for the defense. For example:

You have an almost two-hour window where the President does not say, 'Stop, get out of the Capitol. This is not what I wanted you to do.' What do I do about the fact the President didn't denounce the conduct immediately ... and sent a tweet that arguably exacerbated things? Isn't that, from a plausibility standpoint, that the President plausibly agreed with the conduct of the people inside the Capitol that day?

In other words, "Doesn't Trump's behavior check the box for the only element of the KKK Act that is in question?"

Mehta also appeared to be unimpressed by arguments that Trump is immune from any sort of penalty because he was acting in his official capacity as president. "You would have me ignore what [Trump] said in its entirety?," the Judge asked in reference to the speech that the former president gave on the morning of January 6. Mehta also took notice of the relevant case law that speaks to the limits of presidential immunity.

Of course, the usual caveats about not reading too much into a judge's questions apply here. However, those who were at the hearing (either in person, or virtually) said it's very hard to imagine that Mehta is buying what Team Trump is selling. And given the relatively low bar for allowing a lawsuit to go forward—basically, could the cause of action plausibly be sustained—the odds are very high that a dismissal is not forthcoming. If the suit does move forward, that means—as Swalwell pointed out to reporters, while practically drooling over the possibility—discovery.

Meanwhile, the 1/6 Committee just keeps chugging along. And while they wait for the Supreme Court to decide whether or not they can get documents from Trump himself, it turns out they have been gathering lots and lots of information about his efforts to put pressure on state-level officials to "adjust" the outcomes of elections. It is not yet clear exactly how much information has been gathered, but the paper records are described as "voluminous" and "thousands of pages," while the number of interviews conducted with state-level officials is at least several dozen.

Whereas the cases before Mehta are civil cases, the 1/6 Committee is clearly laying the groundwork for a criminal charge here. They may have in mind 52 U.S. Code 20511, which makes illegal the "procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held." Each violation of this law carries a penalty of up to 5 years in federal prison, which means that in trying to procure 11,780 votes in Georgia, Trump could theoretically be looking at a sentence of 58,900 years. Of course, with good behavior, he could be out in 50,182.

As you can see, violating 52 U.S. Code 20511 requires that the person be aware that the votes in question are fraudulent. Trump's attorneys would undoubtedly argue that he was 100% convinced the "missing" votes were real and legitimate. Even if they can carry that off, there's still the little matter of 18 U.S. Code 241, which applies "If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States."

Trump made his infamous phone call to Georgia Secretary of State Brad Raffensperger with Mark Meadows and at least two other people on the White House end of the line. That would be a conspiracy. And even if Trump, et al., believed they were right, they were still using the power of the presidency to try to overturn an election result, an action that would most certainly deprive many Georgians of their right to vote. The sentence here is 10 years, which is rather different from 58,900 years, of course. On the other hand, for a 75-year-old man in poor physical condition, maybe it's not so different.

Note also that we're only talking about federal laws here. There are relevant state laws Trump might have broken in Georgia, and that is a question most certainly being pursued by authorities there. Meanwhile, we also don't know exactly what the 1/6 Committee knows about Pennsylvania, Michigan, or Arizona. Trump might have dug the hole even deeper for himself with muscle flexing in those states, and he might also be facing state-level prosecutions there as well.

Yes, from where we sit, "heap of trouble" has already arrived. After all, this is just one day's news, and doesn't even include the mess in New York, or the suit from E. Jean Carroll, or the possibility that the Mueller Report and obstruction will roar back to life, or possible violations of election laws, or other crimes the 1/6 Committee and/or the Department of Justice might be pursuing. And because these things are piling up, slowly but surely, we wonder if Trump is like that mythical frog, and isn't even aware of how close the walls are getting. (Z)

GOP Senators Challenge the Throne

In news that might very well be related to the item above, Sen. Mike Rounds (R-SD) appeared on This Week this weekend (say that 10 times fast) and had a few things to say that Donald Trump most certainly did not want to hear. What's getting all the attention is the Senator's assertion that while there were "irregularities," he believes that "the [2020] election was fair, as fair as we have seen." In addition, Rounds also opined that Donald Trump should not be immune from prosecution if he's committed crimes, and also implied that he would prefer a different Republican candidate for president in 2024.

Trump was furious when he heard about the apostasy, of course, and issued his usual blistering statement in which he asserted for the millionth time that the election was fraudulent, and also declared of Rounds: "I will never endorse this jerk again." Such elegance! If that sentence were in iambic pentameter, we might well have mistaken it for Shakespeare. Rounds did not back down in response to this near-sonnet, and instead issued a follow-up statement in which he reiterated his position: "I'm disappointed but not surprised by the former president's reaction. However, the facts remain the same. I stand by my statement. The former president lost the 2020 election."

And Rounds was not the only senator to speak up. Sen. Mitt Romney (R-UT) went and got his spine out of the safe-deposit box and then sent this tweet:

Mike Rounds speaks truth knowing that our Republic depends upon it. Republicans like Govs Hutchinson, Baker & Hogan; Sens McConnell, Thune & Johnson; Bush & Cheney; plus 60+ courts and even the right-leaning Wall Street Journal editorial page agree: Joe Biden won the election.

— Mitt Romney (@MittRomney) January 10, 2022

In case you are wondering, that is indeed Sen. Ron Johnson (R-WI) that Romney is referring to. Although Johnson is happy to get conspiratorial about the 1/6 insurrection and about COVID, he did say several times that the 2020 outcome was legitimate.

Anyhow, this may just be a case of one senator sharing a few thoughts he had, and a second one coming to his colleague's defense, and there's nothing more to it than that. However, let us point out a few things. First, Rounds has not been particularly anti-Trumpy in the past. While Romney did vote to convict in the second impeachment trial, Rounds did not. Second, Rounds and Romney are among the most bulletproof members of the Senate. They are both popular incumbents from very red states, and they are not up until 2024 (Romney) and 2026 (Rounds), respectively. Third, they are both close allies of Senate Minority Leader Mitch McConnell (R-KY).

So, instead of a somewhat random case of a senator or two popping off, we wonder if we might not be seeing the first salvos of an anti-Trump campaign from within the Republican Party. It could be that they are merely concerned with "Stop the Steal" rhetoric, which isn't good for the country, and might also serve to keep Republican voters from bothering to show up at the polls in 2022. Or it could be that as Trump sinks deeper and deeper into conspiratorial thinking, and legal exposure, and willingness to prioritize his needs over those of the party, the GOP pooh-bahs have decided they have a cancer that really needs to be excised, and are taking steps to begin chemotherapy, with the party members who are safest taking the lead. It certainly bears watching.

If the Senate Republicans are up to something, what is their end game? Convincing Trump not to run in 2024 is probably not going to work. He doesn't take direction from "old crow" (or "old turtle" or old anything). Maybe their end game is to ultimately back someone else to run against Trump in 2024 if he tries to run. It would take the unified support of the entire Republican establishment to have a shot at beating him in the primaries. In a fragmented field, Trump would win. But whom would they back? The only thing we can say with near 100% certainty is that it won't be Sen. Ted Cruz (R-TX), since all of the other 99 senators can't stand him. If we had to guess, it would be Gov. Ron DeSantis (R-FL). He is young, telegenic, Trumpish, and comes from the mother of all swing states. But a lot can happen before 2024. (Z)

Scores Will Be Settled if Republicans Win the House

While the Senate might not be a bastion of Trumpism, outside of the odd Josh Hawley (R-MO) or Ted Cruz (R-TX), the House is rife with Trumpers. And even if not all of the Trumpers are really on board the S.S. Donald, they may have no choice but to play along, since they need the votes of people who are devoted to the Dear Leader. Consequently, plans are already being made to engage in some Trump-approved score-settling should the Republicans recapture the House of Representatives this year.

To start, we have been skeptical that there would be an attempt to impeach Joe Biden, in part because it could blow up in Republicans' faces politically, and in part because there has to be some sort of cause of action. Well, perhaps we should not have been so skeptical, because the base wants an impeachment, and what the base wants, the base tends to get. There have already been seven Biden impeachment resolutions filed this year, four of them by—surprise!—Marjorie Taylor Greene (R-GA), and one each by Bob Gibbs (R-OH), Randy Weber (R-TX), and Lauren Boebert (R-CO). Boebert has also tried to impeach Kamala Harris, while Ralph Norman (R-SC) went after Secretary of State Antony Blinken, Scott Perry (R-PA) took a shot at getting AG Merrick Garland removed, and Andy Biggs (R-AZ) targeted Alejandro Mayorkas. Clearly, that wing of the GOP has impeachment on the brain.

Meanwhile, the aforementioned Cruz, who tends to know how the right-wing political winds are blowing—even if he has shown no ability to ride those winds to his preferred destination (besides Cancun)—used his podcast to share his view that if and when the Republicans take the House, Biden will be impeached for...what? Can you guess? Here are five possibilities:

  1. "Defying immigration laws"
  2. "The disastrous withdrawal from Afghanistan"
  3. "Totally unconstitutional vaccine mandates"
  4. "Obviously corrupt dealings with Ukraine"
  5. "Consistently disrespecting our troops, since he is apparently unaware that he is Commander-in-Chief"

We'll tell you the answer shortly.

For now, however, we'll point out that the planned score-settling is not limited solely to impeachment. On Monday, House Minority Leader Kevin McCarthy (R-CA) promised that if he becomes Speaker, he will immediately remove Reps. Adam Schiff (D-CA), Ilhan Omar (DFL-MN), and Eric Swalwell from their committee assignments. This is obvious retribution for the punishments imposed on Reps. Paul Gosar (R-AZ) and Marjorie Taylor Greene. McCarthy's justifications are that Swalwell was associated with a Chinese spy (true, but Swalwell didn't know it, cut ties as soon as he did know, and has not been accused of wrongdoing), Omar has said things that are antisemitic, or antisemitic adjacent (true), and Schiff "lied to the American people" with his support for the Steele dossier (true, in the sense that Schiff took the Steele dossier seriously, but dubious in the sense that such a thing represents a "lie to the American people.").

It is not a coincidence that the three members that McCarthy is targeting just so happen to be among the most outspoken critics of Trump in the House. In particular, the allegations made against Schiff are thin, indeed. And one has to assume that McCarthy and his staff are burning the midnight oil to come up with something—anything—that would allow them to add Rep. Alexandria Ocasio-Cortez (D-NY) to the list. Perhaps she once returned a library book late and failed to pay the fine.

And now, back to the question we asked. Cruz says that while there are "multiple grounds to consider for impeachment," the most compelling is Biden's "decision to just defy immigration laws." On some level, that makes sense, since anti-immigrant rhetoric is where Trumpism began. That is especially true if, in addition to his staunchly xenophobic anti-Mexican candidacy announcement, you also consider the Obama birther conspiracies to be a form of anti-immigrant rhetoric.

In any event, this wide-open plotting and planning and scheming leaves two questions of the sort that we like to talk about. First, will such promises help or hurt the Republicans in 2022? On one hand, the possibility of some revenge against "the libs" could get the True Believers to the polls even without Donald Trump's name being on the ballot. On the other hand, it's going to be very easy for Democrats to say "The Republicans are not even keeping their fascist inclinations secret, so if you like democracy, you might not want to vote for them." As a general rule, when you're the frontrunner, as the Republicans are in 2022, you don't want to stick your neck out and take chances. That's apparently not how the GOP is going to play it, though.

The second question is what will happen if the Republicans actually take over the House. There are still some moderate and/or reasonable Republicans left there. We wonder if enough of them will be willing to support a Trumped-up impeachment, or the stripping of committee assignments on such flimsy bases. It takes 218 votes with a fully staffed House, so it likely depends on how big the Republican majority is (if they end up with one). And in that eventuality, given how obvious McCarthy & Co. are being, they will have achieved power through something of a Faustian bargain. If they actually boot those representatives from their committees and/or impeach Biden, they will have given the entire country an object lesson in their willingness to abuse power going into the 2024 presidential elections. And if the Republicans fail to deliver on the promised score-settling, then the base will be howling mad. No wonder every Republican speaker seems to run for the hills after about 2 years. (Z)

Tar Heel Drama, Part I

There has been some interesting news coming out of North Carolina in the last week. First up is an item brought to our attention by reader M.B. in that state's town of Pittsboro. As background, recall three things: (1) although North Carolina currently has a Democratic governor, the Republican-controlled legislature has total control over district maps, (2) the Republicans pushed their luck too far in the last round of redistricting, and were smacked down by the courts, and (3) the Republicans decided to push their luck again during this round, and got themselves sued again.

The court trial ended last week, and it did not go so well for the North Carolina GOP. To start, the Republicans appear to have been caught fudging the facts. They claimed that their maps were created by district-drawing software, but a parade of mathematicians and academics testified that the software would not have created such skewed maps. Meanwhile, the main expert called by the GOP's lawyers, BYU professor Michael Barber, contradicted the testimony he gave in a pre-trial deposition. In the depo, Barber said the new state legislative maps were partisan outliers. In court, he said they were not. Usually, if someone can't keep their story straight, that's not a good sign for the reliability of their testimony.

In addition to being caught red-handed (and we mean that on several levels), there were revelations of potential chicanery on the part of the Republicans. It came out in court that state Rep. Destin Hall (R), who chaired the redistricting process, was working with two sets of maps: one that he shared with the committee, and a second "secret" set that was drawn up by an aide to be the Republican dream maps. Hall said that he barely even looked at the "secret" maps, and they've conveniently been deleted by everyone who had a copy, so there's no way to know for sure. Still, this is also the sort of thing that does not sit well with a judge. Or with three judges, as is the case here.

If the Republicans get to keep their map, then the state will be left with three overwhelmingly Democratic districts (D+25, D+42, and D+45), one swing district (D+1), and 10 safe Republican districts (R+10 to R+26). Because the great majority of the state's Democrats live in or around Raleigh/Durham (in the east) or Charlotte (in the west), there isn't going to be a map that produces a "purple" House delegation (7R/7D, or eight of one and six of the other). However, a different map might push a couple of seats into the "swing" or "leans Democratic" columns. The judges are supposed to rule today, so we'll get our first indication of where things are headed. Appeals are overwhelmingly likely, though, so it probably won't be the final indication. (Z)

Tar Heel Drama, Part II

The fight over the district maps isn't the only interesting legal maneuvering going on in North Carolina right now. Yesterday, a group of 11 of the state's voters filed suit before the North Carolina State Board of Elections, seeking to disqualify Rep. Madison Cawthorn (R-NC) from running for reelection.

What is the basis for the suit? Section 3 of the Fourteenth Amendment to the Constitution, which reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

This was put into the Constitution, of course, to stop former Confederates from holding office (not always successfully).

One has to assume that the plaintiffs regard this as a Hail Mary pass, and that the court won't go for it. That said, the filing lays out the case pretty thoroughly, reviewing Cawthorn's words and actions before, during, and after January 6. If he is disqualified, Cawthorn might have a tough time getting back on the ballot, since it would be his home state making the decision, and states have pretty wide latitude in managing their own elections. Also, if the suit is successful, there will be sonic booms across the nation as folks in the districts of Paul Gosar, Lauren Boebert, Marjorie Taylor Greene, Matt Gaetz (R-FL), etc. make a beeline to their state's courts to file similar lawsuits.

If Cawthorn wins—and again, he presumably will—then it's not great PR for him, but it's not likely to derail his Congressional career, either. Although he's in an R+9 district right now, he's running for reelection in an R+25 district. That said, if North Carolina Republicans have to redraw the maps (see above), they could decide that, given Cawthorn's considerable baggage, his district is the one that can afford to have some of the fat cut out. For what it's worth, his new district (NC-13) borders NC-09, the D+45 district that contains Charlotte. (Z)

Looking Backward: How Did The Readers Do?, Part III: Right-wing Politicians and Media

More predictions from eons past (a.k.a., we ran them three months ago). Here are the first nine entries in this series:

Recall that predictions get 0-5 points for accuracy. Then they can earn 0-5 points of extra credit based on the boldness of whatever portion the reader was correct about. That means a total of 10 points is available. And now we proceed with an area where there was plenty of room for boldness, since crazy can go in so many directions: right-wing politicians and media.

Things started out well here, but then the readers folded worse than the Indianapolis Colts this weekend. We count 22 points out of 90, for a middling batting average of .244. The readers' running tally is 104.5/360, which produces a much more respectable .290 average. Tomorrow, we look forward again. (Z)


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