Senate page     Jul. 07


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Minutes before we posted today's entry, the news broke that UK PM Boris Johnson is planning to resign. We'll have an item on that tomorrow, ideally including comments from readers in the U.K.

Cipollone Will Testify Tomorrow

Former White House Counsel Pat Cipollone is not fighting the subpoena he was sent and will testify tomorrow before the Select Committee in camera (i.e., privately, without the media). His interview will be recorded and snippets of it might be shown in public later. As we pointed out on Monday, he is in a bind. Testifying in public may ruin his future employment opportunities with Republican organizations, but defying a subpoena could get him disbarred. It is also possible that he senses which way the wind is blowing and wants to get on the right side of history. Alternatively, he may be envisioning a new career as an author. He surely knows that John Dean wrote a bestseller about Richard Nixon and then followed that up with books about the George W. Bush and Donald Trump administrations.

Cipollone's appearance is not a matter of "sit down and tell us what you know." There have been extensive negotiations between him and the Committee. Undoubtedly they covered what he would be willing to talk about, when he would cite executive privilege, and when he might plead the Fifth Amendment. As an experienced lawyer, unlike Cassidy Hutchinson, he undoubtedly has a good feeling for where things might lead and how they might affect him personally.

Three areas the Committee would like to investigate are as follows:

• What happened at the meeting when Trump wanted to make Jeffrey Clark the acting attorney general?
• What Cipollone told John Eastman about his notion that Mike Pence could stop counting the electoral votes?
• What transpired exactly on Jan. 6 when Trump wanted to go to the Capitol?

Of course, Cipollone might not want to talk about one or more of these. That's why the negotiations were needed. To some extent, Hutchinson has already covered some of these topics, but she's not a lawyer and he is. She wouldn't be able to answer a question like: "Did Donald Trump commit any crimes on Jan. 6 and, if so, which ones? He would probably be capable of answering that, but he might refuse to answer or say: "That's for a jury to determine, not me."

What might be important is that, according to multiple people, Cipollone is not close to Trump. He is a lawyer who did his job but he may not have drunk the Kool-Aid. This would make him more likely to flip and tell the truth, the whole truth, and nothing but the truth than, say, Mark Meadows, who drank barrels of it.

Accordingly, Cipollone never believed that Trump won the election, often pushed back against some of Trump's more conspiratorial ideas, and argued against issuing pardons left and right. Trump didn't like Cipollone, either. The former president said: "Why do I have the worst lawyer ever?" At least one high-ranking official noted that Trump often complained that Cipollone said "no" to everything he wanted to do. The mutual dislike Cipollone and Trump have for each other would make it easier for Cipollone to tell the Committee the truth and rat out Trump behind closed doors. Possibly in public later. Needless to say, he would be a very credible witness since he personally observed Trump up close many, many times.

While we are on the subject of subpoenas, Cipollone will honor his, but Sen. Lindsey Graham (R-SC) is planning to challenge the one sent to him by Fulton County D.A. Fani Willis. Graham made two calls to Georgia Secretary of State Brad Raffensperger (R) after the 2020 election and Willis wants to know what he said to Raffensperger. Graham doesn't want to answer that question under oath because Trump probably won't like the answer and then Trump would no longer be nice to his to his toady-in-chief.

The Committee has now said that its next public hearing will be on Tuesday. It will focus on the rioters who stormed the Capitol. (V)

The First Battle over Abortion Is in Less than a Month

The situation regarding abortion is unstable. Most Americans want to allow it. Most Supreme Court justices don't. What happens next?

In principle, Americans get to express their opinions on such matters indirectly, or sometimes directly, at the ballot box. Joe Biden recently said: "This fall, Roe is on the ballot." He was wrong. This summer is when Roe is on the ballot. Specifically, a select group of almost 2 million people will get a chance to express their opinion directly on the subject in about 4 weeks. The lucky people, as has been noted in our Sunday mailbag, are the registered voters in Kansas.

Here's the backstory: In 2019, the Kansas Supreme Court ruled that the right to an abortion is guaranteed by the Kansas Constitution. The state legislature didn't like that, so it drafted an amendment to the state Constitution that says nothing in the state Constitution guarantees a right to abortion, thus allowing the legislature to, well, legislate.

However, amendments must be approved by the voters, so the amendment is on the primary ballot on Aug. 2. If the amendment is approved, abortion will be illegal in Kansas as soon as the legislature can get together to pass a law banning it. If it fails, abortion will continue to be allowed. Thus, the voters get a very direct say in the matter.

This amendment has attracted national attention from both pro-choice and anti-abortion groups and the money is pouring in. Progressives are using social media to encourage pro-choice people to donate to attempts to defeat the amendment. Anti-abortion groups like the Susan B. Anthony list are pouring money in to pass the amendment. Although Kansas is a red state, the current governor, Laura Kelly, is a Democrat. Also, the pro-choice people understand the lay of the land. The ads against the amendment don't even mention abortion. They talk about the issue of whether the big, bad government should be regulating people's lives. Here is one of the ads:

The amendment affects more than just Kansas. If you check the map above, you will notice that three red states (Nebraska, Missouri, and Oklahoma) are adjacent to Kansas. If abortion remains legal in Kansas, pregnant women from those states who want an abortion and can't get it at home will flood in. Texas doesn't have a border with Kansas, but the drive from Dallas/Fort Worth to Wichita is only 5½ hours on the I-35. For desperate women, that is certainly doable. So, by Aug. 3 or so, we should have a better idea of how abortion may play out in November. (V)

Big Tech Meets Abortion

The battle over abortion is cropping up all over the place, not just in Kansas. Tech companies, especially Google, have now been sucked into it. In particular, search companies, among them Google, Microsoft (which owns the Bing search engine), Yahoo, and others collect a lot of data on everyone who uses them. This data is stored more-or-less forever and used to target specific ads at people. If a prosecutor in a state where abortion is illegal suspects that someone had an abortion, he or she can subpoena Google, Microsoft, Yahoo, etc. to cough up all the search terms that person has used recently. If it turns up searches like: "Where to get an abortion?," "buy abortion pills," and "how to end a pregnancy," that information can be used in a court case. It is not definitive, of course, since someone could have searched for these things and then concluded it was too difficult to get an abortion and then chickened out. Still, if there is also other evidence, such as a credit card record showing that the person recently had lunch at a restaurant 2 miles from an abortion clinic in a blue state 300 miles from home, a jury could decide that is sufficient evidence to convict.

Everyone knows that if a particular Internet service is free, you are not the customer, you are the product. But, for the most part, that has been a worthwhile tradeoff for many people, maybe even a plus. After all, if you are in the market for buying a new car and are researching cars on the Internet, isn't it better to get ads from Ford, GM, and Toyota than ads from Coca-Cola, Disney, and Canon? But now, all of a sudden, those searches could be used as evidence at a trial that might result in your going to prison. Whole new ball game.

There are things people can do to minimize the risk, such as never logging into a Google account, using a VPN (to foil your Internet provider), setting the browser to private mode (to avoid leaving evidence on your computer), and clearing all cookies every day, but not everyone is sufficiently Internet savvy to do all these things.

As a consequence, pressure is building on Google and other companies to allow users to delete their own data upon request. Google has taken some baby steps, like having data time out after 18 months, but that really doesn't do the job. Some activists are pushing Google to stop saving health-related data at all. Searches for cars are fine, but searches for abortions are not.

A second issue is that smartphones and mobile phone companies record location data that can be subpoenaed later. If phone company keep location records that show that somebody who lives in Dallas drove 300 miles to an abortion clinic in Wichita in the morning and back to Dallas in the evening, that is going to be hard for the defense to explain to the jury.

Third, although private mode on a browser doesn't store search information on the user's device, it does leak private information to the search company that could be used to identify the user. The companies could stop doing that but they are unlikely to do so.

Fourth, text messages and chats may or may not be private, depending on the system being used and the technology employed.

In short, Big Brother is watching you and will continue to do so until Congress tells him to stop. (V)

Can Anything Be Done about the Supreme Court?

The Constitution is full of checks and balances. The founders saw this as a feature, not a bug. They wanted to make sure that no branch of the government got too much power. In particular, nowhere in the Constitution does it say the Supreme Court gets the last word on everything. In fact, its habit of invalidating laws duly passed by Congress has no firm basis in the text of the Constitution itself. It just started doing that in Marbury v. Madison (1803) and people accepted it.

The decision in the Dobbs case is not the first time the Court did something unpopular. At least five times in the past, the Court made an unpopular ruling and Congress responded to it using its powers. Here are some examples.

• Dred Scott: The most infamous Supreme Court decision in history is Dred Scott v. Sanford, which ruled that because slaves were property, like cattle, they had no rights, and could not be U.S. citizens. After the Civil War, the Republicans in Congress overrode the Court by passing the Thirteenth and Fourteenth Amendments and then submitting them to the states, which quickly ratified them.
  
  
• Religion: In 1990, Justice Antonin Scalia wrote an opinion in Employment Division v. Smith saying that the Constitution's religion clause could not be used to invalidate laws that were neutral on religion. Congress prayed for guidance. God told them to go pass a law, for heaven's sake. So they passed the Religious Freedom Restoration Act, which made it easier for the Court to void laws that interfered with somebody's view of what his religion required. (However, the Court struck back and ruled that the RFRA didn't apply to state laws.)
  
  
• Fair Pay: In 2007, the Supreme Court ruled against a long-time Goodyear worker, Lilly Ledbetter, who had discovered that the company was paying men in her position more than her. Ruth Bader Ginsburg wrote a fiery dissent practically ordering Congress to fix this. It did, with the Lilly Ledbetter Fair Pay Act. Ginsburg kept a framed copy of the bill in her chambers.
  
  
• Tobacco regulation: In 2000, the Supreme Court ruled that the FDA had no authority to regulate tobacco because it is neither a food nor a drug as defined by the law. It took Congress 9 years, but eventually it passed the Family Smoking Prevention and Tobacco Control Act, which explicitly gave the FDA the power to regulate cigarettes and other tobacco products.
  
  
• Disability rights: Around 2000, the Court issued a series of rulings that weakened the Americans with Disabilities Act. In 2008, Congress passed a new law that explicitly stated that the Court was wrong and made the disputed rights explicit in the new law.

In these cases, Congress effectively told the Court: "You read the law wrong. This is what we meant." But doesn't address what many Democrats see as the core problem: The Supreme Court thinks it can run the country. They want structural changes to the Court that will prevent it from even trying. Vox has helpfully published an article listing 10 legal ways the Court can be taken down a peg or two. Here is a brief summary:

• Expand the Court: The number of justices is fixed by law, not by the Constitution. It has varied from six to ten over time. Congress could fix it at a larger number, say 13, or if it is afraid that is unlucky, then 15.
  
  
• A balanced court: One far-out proposal is a 15-member Court consisting of five Democrats, five Republicans, and five justices chosen by the other ten. This would guarantee that the five swing justices would be neutral. However, this might run into the problem that it is the president who picks justices, according to the Constitution, not the other justices. It should be noted that in some other countries, it is indeed the sitting judges who pick new judges.
  
  
• Act like a Circuit Court: When a case is appealed to a circuit court, three judges are picked off the bench at random to hear the case. In this proposal, all 172 active circuit court judges would be nominated and confirmed as Supreme Court justices. Every 2 weeks, nine of them would be chosen at random to hear upcoming cases. They would hear only the cases scheduled for those two weeks. Then they would go back to their circuits. This would mean that six unelected justices could not throw out all the laws they don't happen to like.
  
  
• Term limits: In this proposal, which would require a constitutional amendment, justices would serve a single 18-year term, with two most senior justices removed every two years. This would also guarantee each president at least four picks per term, depending on how vacancies were handled.
  
  
• Jurisdiction stripping: The Constitution says that the Supreme Court has original jurisdiction on disputes between the states and disputes with foreign countries and appellate jurisdiction on all other cases subject to whatever limitations Congress imposes on it. Congress could pass a law taking away the Court's appellate jurisdiction on voting rights, abortion, and other cases.
  
  
• Require a supermajority to throw out a law: On "regular" cases (e.g., did company X violate company Y's patent), a simply majority would suffice. But to strike down a law duly passed by Congress, a 7-2 majority would be required. Of course, if seven members of the Court didn't like this law, they could kill it.
  
  
• Presidential resistance: This falls under "How many divisions does the Court command?" Or "John Marshall has made his decision. Now let him enforce it." A president could concoct some reason to ignore the Court and then just do it. If he made this clear in advance, the Court might be much more humble and not think that it alone can run the country.
  
  
• State resistance: Same as the above, but this time with a governor saying: "Try to make me."
  
  
• Congressional resistance: The Congressional Review Act lays out an expedited procedure for Congress to review and swiftly overrule executive branch regulations. A new and analogous law could give Congress an expedited procedure to swiftly overrule Supreme Court decisions.
  
  
• Omnibus Legislation: In 1988, the Court handed down five decisions that eroded the Civil Rights Act. Congress promptly passed a bill restoring them all. After Congress performed this at trick half a dozen times, the Court would probably get the message.
  

In short, there are lots of legal ways to rein in the Supreme Court. The problem is not the law. The problem is the filibuster and getting a working majority in Congress that is determined to do it. (V)

Christian Nationalists Want Dominion over the Country

For Christian Nationalists, the Supreme Court's Dobbs decision is merely the first step in a much larger agenda. The end goal is breaking the back of democracy and replacing it with their version of a Christian theocracy. This group used to be a fringe movement, but it is rapidly gaining momentum. If you want to know what the movement wants, its "Road to Majority Policy Conference" held last month in Nashville gives, well, its road map. Donald Trump was the keynote speaker, and he said: "The greatest danger to America is not our enemies from the outside, as powerful as they may be. The greatest danger to America is the destruction of our nation from the people from within. And you know the people I'm talking about." They certainly do.

Other speakers tried to outdo Trump. Sen. Rick Scott (R-FL) told the attendees to get out their guns and take the country back by force. Starting with the 2022 and 2024 elections, he told them to do whatever is needed. Think of the movement's members as religious vigilantes. Banning all abortions nationwide is high on the agenda, but is by no means the only goal.

The movement is not bottom up, driven by the grass roots. The leaders set the agenda. The main goals are power and access to government money. The word filters down via pastors and religious media. Members are told over and over not to believe what they see and hear outside their bubble.

A key tenet of the movement is that conservative Christians are the most oppressed group in America and they have to fight back. Followers are being told that if they don't, the Bible will soon be banned.

Many of the people who stormed the Capitol on Jan. 6 are Christian Nationalists. Their symbolism was there, if you knew where to look. Their allegiance is to blood, earth, and religion, not to the Constitution and certainly not to the government. Many of those who were not present at the insurrection lionize the rioters.

An initiative called "Faith Wins" is preached by pastors in the movement. It is a combination election skepticism mixed with a call to vote "biblical values." One evangelist, Byron Foxx, says: "The church is not a cruise ship, the church is a battleship." Here, too, the main theme is how conservative Christians are an oppressed minority and how they need to band together, follow orders, and fight back.

One specific battleground is schools. This goes back to 1979, when Jerry Falwell said he hoped to see the day when all public schools were gone. The modern version of this is that the leaders are eyeing the $700 billion that the local, state, and federal governments spend on education, and they want to control that. One of their strategies here is to take over local school boards to control what is taught in schools. But this is only one of the seven mountains Christian Nationalists want to control. The other six are: family, religion, media, entertainment, business, and government. They believe that once they control them all, they can bring on end times. Nevertheless, it is clear this is a political movement, not a religious movement. It is about gaining and using political power, not saving souls. And the movement is growing. (V)

Lying for Fun and Profit

A few of Donald Trump's lawyers, like Rudy Giuliani and Sidney Powell, have had their law licenses revoked or threatened. But many others are still going strong. In fact, some of them are gaining clients as a direct result of lying and filing baseless suits. For example, Juli Haller filed a lawsuit in Michigan claiming that the absentee vote counts were manipulated by a computer algorithm developed by the deceased Hugo Chavez. The judge threw the case out and referred her for disbarment. What was the result? MAGA types are climbing all over themselves to hire her as their lawyer. And she is not the only one.

At least 15 other lawyers who filed equally baseless suits are thriving. They have discovered that filing baseless suits to try to overturn the 2020 results in various states is a profitable niche business. Their goal is to sharpen their skills for 2022 and 2024.

Legal experts says that fines have no effect on them since they can easily raise the money to pay them from Trump supporters. As one example, for spreading lies about 2020, Powell raised $14 million. That is good pay if you can get it.

One attorney, David Fink, is leading a group called the "65 Project" that is trying to get 100 of Trump's lawyers disbarred. It is not known how well he is doing since state bar associations require investigations to be confidential. But the defendants are clearly going to fight the charges with everything they've got, so the disbarment process won't be easy or fast. Fink isn't alone in pushing back, though. David Levine, a former elections director in Idaho, is working on establishing harsher punishments for lawyers who lie and inflame controversies long disproven. A key issue in all these cases is whether the lawyers knew that what they were saying and filing was false and did it anyway. That is often hard to prove and many of the lawyers, including Powell, are unrepentant and are still at it. As recently as July 2021, Powell said she would welcome an opportunity to prove her case. Many of the others feel the same way. (V)

Doug Mastriano Has a Plan for Winning

Republican gubernatorial candidate Doug Mastriano has a plan for winning the governorship of Pennsylvania—and it doesn't entail getting more votes than Democrat Josh Shapiro. He wants the state legislature to pass a bunch of laws that do the following:

• Allow voter intimidation: Well, he doesn't call it that. He calls it letting partisan poll watchers get closer to the voters and be allowed to challenge any voter for any reason. If this passes, Republicans in police-like uniforms will show up in heavily Black precincts and challenge every voter to prove he or she is a citizen and resident of the county. These challenges may be accepted, in some cases, and may scare off voters in others. At the very least, it will throw sand in the gears of the election and make it drag on until 8 p.m. or later. Some voters will just give up and go home, which is fine and dandy with the poll watchers.
  
  
• Eliminate no-excuse absentee voting: In 2020, Democrats used absentee ballots much more than Republicans, so Mastriano wants to eliminate the practice. Make those lazy Democrats show up on Nov. 8 and stand in line for hours. He also wants to ban dropboxes for the voters who have a legitimate reason to use an absentee ballot.
  
  
• Appoint a radical secretary of state: In Pennsylvania the governor appoints the secretary of state, and if Mastriano wins, he will certainly appoint someone whose philosophy is: "If a vote is for a Democrat, it must be fraudulent," and take it from there. He says he has someone in mind already, but won't say who.
  
  
• Forcing all Pennsylvanians to reregister: He wants everyone removed from the voting rolls, forcing anyone who wants to vote to reregister. He is fairly sure that Republicans would do this in greater numbers than Democrats because he knows Democrats (especially young ones) often don't bother to vote in the midterms, so they are unlikely to reregister—even if they know they are required to. This is a more radical step than has been proposed anywhere else. It also violates federal law, but who cares about that when winning is at stake?
  
  
• Defund the state Supreme Court: If everyone is scratched from the voting rolls, the Pennsylvania Supreme Court would probably get to look at that first. To rein it in, Mastriano wants to remove its funding. No more clerks or secretaries or computers. Maybe make them work from home on their phones. Then they wouldn't get in his way.

Needless to say, the Democratic candidate, state AG Josh Shapiro, is wildly against all of this. However, Trump is helping Mastriano aggressively and, remarkably, polling shows it to be close. (V)

Turnout Is Everything

It is common for political writers to make generalizations that aren't entirely true, like "young voters are Democrats" and "farmers are Republicans." While these comments are statistically true, there are some young voters who are Republicans and some farmers who are Democrats. FiveThirtyEight has a series on outliers. The latest installment is on older voters who are progressives and what they want. (Hint: They want the same things that younger progressives want.)

But the outliers aren't the reason we linked to this article. What struck us as noteworthy is this graph:

The author's point is that older voters have the best turnout record and have had it since 1992. Our point is that there are huge disparities in turnout rates and that has held for the past 50 years. Very roughly, the older someone is, the more likely they vote and also, the older someone is, the more likely he or she is a Republican. If young people voted at the same rate as old people, Democrats would win all competitive elections and probably quite a few that are now not competitive. This disparity is what keeps the Republican Party alive.

What the Democrats need to do is find ways to get young people to vote. Here are some possibilities:

• Spend less on TV ads and more on the ground war, especially getting young people registered
• Make voting easier, such as automatically sending every voter a ballot, like in several western states
• Put ballot issues that interest young voters, like legalizing marijuana, on every ballot
• Run charismatic candidates that young people like, rather than geriatric candidates
• Make voting compulsory, with a fine for not voting (as in Australia)

There are probably other things that can be done, but getting turnout up among young voters really should be the Democrats' top priority. (V)

Poll: Confidence in Government Is at an All-Time Low

People trust small businesses and the military and that's it. A new Gallup poll shows that no other institution or sector has even 50% approval. It's a dismal picture. Here are the Gallup findings:

Let's start at the bottom. A year ago Congress was at 12%. People then probably said it can't go much lower. Well, it can and did. Now only 7% of the country has any faith in Congress. About all it can do it now is name a post office once in a while, provided the honoree isn't controversial. It is a huge condemnation of the institution. At 23% approval the presidency, and at 25% the Supreme Court, aren't doing so well either. And the two of them have taken the biggest hits since a year ago. People have the impression that nothing works—and they are right. If you look at the rightmost column, you see that nothing has gotten better in the past year. Nothing. And everything except organized labor has lost trust.

Gallup has been asking about confidence in institutions since 1979. The trend line is not encouraging. It has gone from almost 50% on the average to 27% now. Here is that graph.

The results are somewhat dependent on partisanship for some of the items. Both Democrats and Republicans agree that the military is good and Congress is bad. However, Democrats are 49 points more positive than Republicans on the presidency and 30 points more positive on public schools and newspapers. In contrast, Republicans are 39 points more positive on the police and 26 points more positive on the Supreme Court. Everything else is in between. It is not a hopeful picture of a country united and focused on solving its problems. (V)

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