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Surprise Hearing for the 1/6 Committee

When we last checked in with America's favorite reality show, there was supposed to be a 2-week break between Episode 5 ("The People vs. Donald Trump") and Episode 6 ("Untitled Bennie Thompson-Liz Cheney Project"). Not so much, as it turns out. On Monday, the 1/6 Committee added a hearing to today's calendar. Maybe it's sweeps week.

All joking aside, we can think of three plausible hypotheses for why the Committee would do this with a fair bit less than 24 hours' notice:

  1. They've come across something juicy, and they think it will leak if they wait too long to share it.
  2. This is for dramatic/intrigue purposes, and the Committee was always inclined to hold a hearing this week.
  3. They have one or more witnesses who might not be available if the Committee waits too long.

Could be any or all of these, or something we didn't think of. However, the early returns suggest that it is... Number 3. Although the Committee said nothing about its agenda when announcing the hearing, Punchbowl News (a paywalled blog for Washington insiders and political junkies) managed to find out that Cassidy Hutchinson, a former aide to former White House Chief of Staff Mark Meadows, will testify. She was witness to many key events related to the 1/6 insurrection, and she might be the only person who: (1) can speak firsthand to what the president knew and when he knew it and (2) is willing to talk.

Hutchinson already spoke to the Committee behind closed doors, and on multiple occasions. However, she was apparently unwilling to answer certain questions and she was unwilling to testify publicly. Then she fired her lawyer, Stefan Passantino, who is deeply connected to TrumpWorld, and replaced him Jody Hunt. Hunt worked in the Trump-era Justice Department, but now answers to his bosses at the prominent law firm of Alston & Bird. And the partners there aren't going to tolerate conflicts of interest.

In short, it sure looks like Hutchinson was getting advice to resist the committee to protect Trump, and now she's getting advice to protect herself and to leave Trump to his own devices. If that is true, then the pressure from TrumpWorld will be intense, and one can imagine that the Committee might be worried about Hutchinson getting cold feet if they wait too long. Some are suggesting that Hutchinson could be the John Dean of the 1/6 Committee hearings. We'll soon see. The late change in plans means it's not clear who will broadcast the hearing, but it will certainly be streamed on the Committee's YouTube feed. The party begins at 10:00 a.m. ET, as usual. (Z)

Johnson Keeps Flopping Around

Before we get to the Dobbs content that you surely know is coming, let's work through all the insurrection content. As readers who have been following the 1/6 Committee know, Sen. Ron Johnson (D-WI) is very much exposed right now. That is because during last Tuesday's hearing, it came out that, working though an aide, the Senator apparently tried to submit "alternate" electors lists to VP Mike Pence, while on the floor of the House on January 6.

The first clue that Johnson was in trouble came just hours after Tuesday's hearing, as the Senator pretended to be talking on his (clearly inactive) phone to avoid facing questions from reporters. That evening, and into the next day, Johnson's story was that the fake electors list was something an intern in his office printed out, and that he (Johnson) had nothing to do with it, and had no knowledge of it. Sounds very plausible, right?

Ok, maybe not. In fact, it doesn't sound plausible at all. It would seem that this occurred to the Senator, because by Thursday he had changed his story. The new story is that Johnson did play a role in passing the documents along, but that he didn't really know what they were, and that they were the handiwork Dane County attorney (and MAGA Man) Jim Troupis and Rep. Mike Kelly (R-PA). So, if you're looking for a member of Congress to blame, it's Mike Kelly, right?

Ok, maybe not. It took just minutes for Kelly to deny any involvement at all, and to assert that he hasn't spoken to Johnson in at least a decade. We don't know exactly what the truth is, and we're not likely to get it from Johnson, at such point that he moves on to v3.0, v4.0, and v5.0 of his story. However, we do recall the old line: "If the facts are on your side, pound the facts. If the law is on your side, pound the law. If neither the facts nor the law are on your side, pound the table." Shortly after Kelly pushed back against the Senator, Johnson sent out this tweet:

The 1/6 committee’s partisan witch-hunt is revealed. They smeared me with partial and incomplete information. This sets the record straight. As I have been saying, it is a NON-story driven by corporate media that is complicit in spreading the Dems’ lies. https://t.co/sk0BcybQ6K

— Senator Ron Johnson (@SenRonJohnson) June 23, 2022

From where we sit, it looks like the table pounding has begun.

Johnson can claim "fake news" all he wants, but what really matters is: (1) How the Department of Justice sees things, and (2) How the voters of Wisconsin see things. Every Democrat running for the Senate in that state should be, and is, shouting about how Johnson is a crook and is unwilling to disenfranchise millions of Wisconsin voters in order to get his way. Shortly before the new revelation, Marquette released a poll of the race; they have Johnson trailing three of his four possible challengers. The gap is small (1-2 points, and so within the margin of error), but that's a bad place for a sitting U.S. Senator to be. Add in the new information about him, and the fact that whatever Democrat gets the nod is going to be absolutely awash in money and other support as part of the effort to pick up those 51st and 52nd Senate seats, and Johnson has some trouble on his hands. (Z)

Is Eastman a Criminal?

As we have pointed out repeatedly, prosecutors often go after the little fish first in the hope of getting them to flip and implicate the big fish. So, let us now consider one of the small (or maybe medium-sized) fish in Donald Trump's orbit: John Eastman. If he flipped and ratted out Trump to save his own hide, surely that would help put Trump away. But getting Eastman to do so might not be so easy.

Eastman concocted cockamamie legal theories about the powers of the President of the Senate, Mike Pence. But lawyers think up theories all the time. It's part of the job description. Thinking up ways to help your client, no matter how far fetched, is hardly a crime. Prosecutors are generally loath to charge lawyers for their legal work helping their clients. As a former appellate judge, AG Merrick Garland has seen many lawyers cook up fantastic theories to defend their clients. He knows it is common.

Garland also knows that Eastman invoked the Fifth Amendment over 100 times when the Select Committee had him under oath. He also knows that although it smells fishy, that is perfectly legal.

As with Trump, some of the crimes Eastman could be charged with require corrupt intent—that is, he knew he was lying. One strong piece of evidence against Eastman came out during Greg Jacob's public testimony. Back in January 2021, Jacob asked Eastman privately what would happen if his argument, namely that Pence could unilaterally throw out electoral votes he thought were in dispute, came before the Supreme Court. Eastman first said he would lose 7-2 and then thought for a minute and said, no, he would lose 9-0. This admission that the Supreme Court would never buy what he was selling is strong evidence that he knew he was lying when he said Pence had the authority to throw out electoral votes on his own.

But is the case strong enough to convince a jury? Garland would have to make the call. At very least, the DoJ is looking into it. Yesterday, the news broke that on the same day that agents raided the home of would-be Acting AG Jeffrey Clark, they also seized Eastman's phone. Only Team Garland knows what they are after, but our guess is that it isn't some new ringtones.

As Justice considers trying to squeeze Eastman, there is also plenty of psychology in play, in addition to law. Garland would have to guess whether the thought of a long prison term would scare Eastman enough to flipping. Garland knows that plenty of Trump insiders have refused to flip and are defending themselves vigorously. These include Paul Manafort, Roger Stone, Allen Weisselberg, Michael Flynn, Steve Bannon, and Tom Barrack. Tough call, although if one of them actually gets popped, and ends up in a federal penitentiary, most of the others might wilt. (V)

SCOTUS Did It Again

Last week, the Supreme Court blurred the line between church and state, ruling that the state of Maine must allow tuition vouchers for rural students to be used at religious schools. And yesterday, by the usual 6-3 vote, the Court blurred that line again, ruling in favor of a former high school football coach, Joe Kennedy, who was in the habit of leading prayers after football games.

Due in part to the need for economy of words, but also due to effective PR, the extent of Kennedy's activities has sometimes been understated. That includes by us, as reader J.W. in Indianapolis wrote in to point out. It has been written that he merely engaged in a few silent prayers, all by his lonesome, which doesn't seem too objectionable. However, that was just where it started. Over the course of 7 years, the prayers became more prominent, and eventually grew to include players and coaches from Kennedy's team and from opposing teams. Eventually, sermon-like speeches were added. Basically, Kennedy was holding revivals at the 50-yard line:

The coach stands among at least 60 people, including kneeling players from both teams, as indicated by their different-colored jerseys

The arrow points to the preacher... er, to the coach, that is. Well, former coach. He wasn't fired; he decided not to reapply for the job when his contract was renewed, and he moved to a different state shortly thereafter. It was at that point that the martyr routine really kicked into overdrive.

This sort of coach-led prayer is now kosher, according to the Supremes. Well, maybe not kosher, because it's not clear that's a religion the justices are interested in protecting. It's not halal, you can be sure of that. Let's say that this sort of prayer has SCOTUS' blessing. And if coaches can preach Christianity at football practice, it's not clear to us what would stop teachers from preaching Christianity in the classroom. After all, a coach is a type of teacher and the sports arena is a type of classroom.

To anyone who has been a teacher or a coach, and presumably most folks who haven't, it's abundantly clear why this should not be OK. There is some dispute as to whether or not Kennedy explicitly linked playing time to praying time, but even if it wasn't explicit, it doesn't matter, because the implicit threat is more than enough to compel student behavior. Teachers, of any sort and at any level, are granted a great deal of power over their charges, and it is grossly unethical to abuse that. Whether it's asking for a kiss, or trying to sell a student a chocolate bar, or "encouraging" them to take part in prayers, it's all the same sort of misconduct.

The Justices have four more hot-button cases to decide; whether Joe Biden can dump the Trump-era policy that asylum-seekers "Remain in Mexico," whether the EPA can regulate carbon emissions from power plants, whether states can be compelled by the federal government to employ disabled veterans, and whether state governments can prosecute crimes committed on Native reservations. The Supremes will undoubtedly release those in the next few days and then head off to their vacations and their remunerative speaking gigs, unconcerned about the consequences of their rulings. After all, it's not like any of them will need an abortion, or will be coerced into praying, or will be obliterated by a bullet while the police hem and haw outside the building. (Z)

What a Bill Protecting Abortion Might Look Like

And now, the abortion-centered content. This weekend, we answered a question about whether or not Congress would be able to codify abortion protections now that the Supreme Court has weighed in. Our answer was: Yes, Congress would be able.

It would seem we were a bit overly brief, as we got a lot of pushback on that answer. For example, from K.B. in Hartford, CT:

Your answer was off the mark in my view because Congress can only legislate in areas expressly set out in Article I. Most legislation is justified under the Commerce Clause, but a majority of the Court held that the Commerce Clause did not authorize Congress to pass the Affordable Care Act. It survived only because the Chief Justice held that the penalty for not having insurance amounted to a tax and Congress expressly has the power to tax. If providing health care generally does not fall within the Commerce Clause, then it is difficult to see how providing reproductive health care does. (Laws allowing abortifacients to cross state lines should survive scrutiny since that does involve interstate commerce. While that is something, it shows the limits of what Congress will be able to do.)

Because this is going to be a pretty important question in upcoming weeks and months, we thought we had better revisit it in more depth.

To start, Speaker Nancy Pelosi (D-CA) sent a letter to her caucus yesterday laying out the lines of attack that she and her leadership team are working on. The first is making sure that women's private healthcare information stays private. The concern, of course, is that information stored in apps and by websites could be used to track, harass and potentially prosecute women. The Congress is on rock-solid legal ground here; any privacy laws it might pass are rooted in the legislature's right to regulate commerce (since people pay their doctors for service) and the Fourth Amendment right against unlawful search and seizure. Also the right to privacy implied by the Fourteenth Amendment, at least until last Friday.

The second line of attack is to affirm that Americans have the right to travel freely between states. Legislation of this sort would be basically putting a bit more icing on the cake. Freedom of movement is quite clearly guaranteed by the Privileges and Immunities Clause of Article IV of the Constitution. And for anyone in the room who might be an originalist, both James Madison (Federalist No. 42) and Alexander Hamilton (Federalist No. 80) wrote as much.

The third line of attack, and the one we want to focus on, is to pass a law specifically protecting the right to an abortion. We already know what that law would look like because the House has already passed such a bill, namely the Women's Health Protection Act of 2021. As with most bills of this sort (at least these days), the bill starts with a list of findings meant to establish by what right Congress passes the bill. In this case, the list includes this:

Abortion services are essential to health care and access to those services is central to people's ability to participate equally in the economic and social life of the United States. Abortion access allows people who are pregnant to make their own decisions about their pregnancies, their families, and their lives.

In other words, abortions are an economic issue, and thus covered by the legislature's right to regulate Commerce. The bill also has this:

Reproductive justice requires every individual to have the right to make their own decisions about having children regardless of their circumstances and without interference and discrimination. Reproductive Justice is a human right that can and will be achieved when all people, regardless of actual or perceived race, color, national origin, immigration status, sex (including gender identity, sex stereotyping, or sexual orientation), age, or disability status have the economic, social, and political power and resources to define and make decisions about their bodies, health, sexuality, families, and communities in all areas of their lives, with dignity and self-determination.

In other words, abortion rights are covered by the Equal Protection Clause of the Fourteenth Amendment. And, by the terms of Article I, Section 8, Congress is entitled to pass laws "which shall be necessary and proper for carrying into Execution [those] Powers vested by this Constitution in the Government of the United States..." Note that while we provide one example, here, about 10 of the "findings" are meant to invoke the Equal Protection Clause. There are also allusions to the right of bodily control, which implicitly reference the Thirteenth Amendment and the Suspension Clause (i.e., habeas corpus).

The bill also has this:

Core human rights treaties ratified by the United States protect access to abortion. For example, in 2018, the UN Human Rights Committee, which oversees implementation of the ICCPR, made clear that the right to life, enshrined in Article 6 of the ICCPR, at a minimum requires governments to provide safe, legal, and effective access to abortion where a person's life and health is at risk, or when carrying a pregnancy to term would cause substantial pain or suffering.

In other words, abortion rights are covered by Congress' Article I right to enter into treaties.

We will also point out that the Civil Rights Act of 1964, on which the Women's Health Protection Act is modeled, asserted the same set of bases for passage, except remove the treaties bit and add in the Fifteenth Amendment. The people who write legislation are quite good at giving themselves multiple constitutional anchors.

It is certainly possible that if Congress somehow passes these laws, and then the red states sue, the Supreme Court will find a way to strike them down. But if SCOTUS does so, they'll have to find yet another way to stand on their heads in search of a result, because Congress has many arguments for asserting its authority to protect abortion, and last week's ruling only takes the legs out from under one of them. (Z)

Paging Joe Biden, Part I: Crickets

It's been about 4 days since Dobbs came down, and thus far there has been virtually nothing from the White House except angry words. And Joe Biden's fellow Democrats are very, very cranky about that.

It's true that the President has been rather busy with the G7 this weekend. However, we've been told that he does have one or two people who work under him. Maybe three. And those folks could have been working on something, especially since everyone has known this day was coming.

That said, it's a marathon and not a sprint, and the White House promises that something is coming. Everyone knows that Biden is a cautious institutionalist, but, as a matter of pure political strategy, it's time for him to put that aside. First of all, his administration is drowning in problems where any action he might take is going to be unsatisfactory. Notice, for example, that the whole gas-tax holiday appears to have disappeared into the vapor. On abortion, he might actually be able to do something meaningful. Or, at least, something that his base sees as meaningful. The President has been handed an opportunity, and he needs to swing for the fences.

Beyond the observation that Biden should seize the advantage, there's also the crystal-clear fact that if he does nothing, or does something wishy-washy, he'll be cooked as far as the base is concerned. Most Biden voters (not all) have been willing to forgive the gas prices, and the Afghanistan withdrawal, and the lack of progress on Build Back Better, and a bunch of other things because they believe (probably rightly) that there was little the President could do. But if Biden comes up short on this issue, then he'll be permanently branded as a fellow who is too small for his big office, and who is unable to rise to the occasion. Think Jimmy Carter, except in the social media age.

Finally, Biden has been around politics long enough to know that the rules of the game change. He did lots of things in the 1980s and 1990s that were politic then—hugging women, his interactions with Anita Hill, the crime bill—but are not politic in the 2020s. He's savvy enough to have realized that, and apparently to have learned from that. Given the gridlock caused by the filibuster and polarization, we appear to be in the era where the president just has to stretch his authority to the limit and hope for the best. Donald Trump constantly overpromised and underdelivered, and his base loved him for it. If Biden can dial down the promising a little and dial up the delivering, that could reverse his fortunes. The world is watching. (Z)

Paging Joe Biden, Part II: Howard Stern for President

Back when Donald Trump was first gaining traction, there was much speculation about who his Democratic equivalent might be, and whether that person might be able to win over the Democratic base. Kanye West was a popular answer to that question, but that never really made sense, since he and Trump have little in common beside their celebrity status and their motormouths. The Rock was another common answer, though it's not even clear if he's a Democrat. Mark Cuban's name also entered into those discussions, but he's a little too much a fan of Ayn Rand to connect with the Democratic base.

No, the obvious answer to the question is: Howard Stern. Consider the parallels between he and Trump:

They also have in common a history of less-than-decorous comments about women, but Stern has apologized and turned over a new leaf on that front, unlike Trump.

Those who have followed Stern's career know that, as a lark/statement of protest, he once launched a campaign for governor of New York. And, to everyone's surprise, he caught fire. He didn't actually want to be governor, and so he eventually found a way to gracefully exit the race, using financial disclosure rules as his excuse. But the point is, there's already a little bit of "proof of concept" with him.

Now, in view of the Dobbs decision, Stern is threatening to run for president in 2024. He spent much time on his show on Monday blasting the ruling and the judges who made it, and asserting that if he was elected president, he would have a very small list of items on the agenda: getting rid of the Electoral College, overhauling the Supreme Court, and restoring abortion rights.

It's very, very unlikely that Stern actually runs (although that's what we and everyone else said about Trump, so...). We run this item to make two points related to the previous item. The first is that Democrats (and independents, of which Stern is one) are demanding action from the White House right now, and are not going to be happy if they don't get it. The second is that if Biden doesn't take strong action, he'll be challenged by one (or probably many) Democrats who will be more than happy to commit to strong action. Again, the world is watching. (Z)


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