Republicans scraped the bottom of the barrel last October when they elected the little-known Mike Johnson of Louisiana Speaker of the House of Representatives and second in line to the Presidency of the United States. Johnson emerged as the fourth Republican nominee in what had become a clown show of political infighting after the Republican caucus threw out Speaker Kevin McCarthy. Johnson’s election required fifteen votes.
McCarthy was voted out of the job in an extraordinary showdown, a first in U.S. history, forced by a gang of hard-right conservative Republicans. The vote threw the House and its Republican leadership into chaos. McCarthy’s crime was to have reached a bipartisan agreement with Democrats to fund the government for a brief period to prevent a shutdown.
I remember vividly the decision of the United States Supreme Court in Bush v. Gore, 531 U.S. 98 (2000). The Supremes had opined on elections many times before. But this was the first time the top court literally decided an election, stopping the ballot counting process still under way in Florida, and declaring George W. Bush the winner and 43rd President of the United States.
Moreover, it came to its decision by a party-line vote of 5 to 4. That led many to question the validity of the decision, which was based on the determination that the vote counting in Florida would violate the due process clause of the Fourteenth Amendment. Note I wrote “would” rather than “did”. The Bush Court apparently consulted a soothsayer and reached its conclusion based on a prediction, not an actual event. We can never know if it was right.
This is nuts. That’s all I could think as I listened to D. John Sauer, an attorney for Donald Trump, with Trump sitting in the front row of the courtroom, tell a panel of the United States Court of Appeals for the District of Columbia that it should overturn a decision of the district court and dismiss the federal indictment against Trump for crimes connected to the January 6, 2020, mob assault on Congress.
To recap, on August 1, 2023, Special Counsel Jack Smith charged Trump with four federal criminal counts after a grand jury investigation into Trump’s attempt to overturn the 2020 election, culminating in the January 6th insurrection. In October 2023, Trump claimed in the case that he had absolute immunity from prosecution for actions he took as president but Judge Tanya S. Chutkan, the trial judge in the case, rejected (opinion here) Trump’s claim, finding that “neither the Constitution nor American history supported the contention that a former president enjoyed total immunity from prosecution.” Trump appealed the ruling.
There are reasons why journalists usually write analysis and commentary only after a breaking event has settled. Today Maine’s Secretary of State, Shenna Bellows, disqualified former President Donald Trump from appearing on the state’s 2024 Republican primary ballot. Her decision was based on the 14th Amendment of the US Constitution, which prohibits anyone who has “engaged in insurrection or rebellion” against the United States from holding office.
(L-R) Dr. Claudine Gay, President of Harvard University, Liz Magill, President of University of Pennsylvania, Dr. Pamela Nadell, Professor of History and Jewish Studies at American University, and Dr. Sally Kornbluth, President of Massachusetts Institute of Technology, testify before the House Education and Workforce Committee at the Rayburn House Office Building on December 05, 2023, in Washington, DC. The Committee held a hearing to investigate antisemitism on college campuses.
Let me give you a piece of advice. If someone asks you if calling for the genocide of the Jewish people violates the standards of your organization, the answer is “Yes!” Do not equivocate. Do not hesitate. Do not turn to your lawyer and ask for a legal brief balancing the right of free expression against the fighting words involved in a call for the violent elimination of a race of people. Just say, “Yes!”
Oh, I tried. I tried to write about the horrible fire in Maui. I tried to write about elite universities. I tried to write about artificial intelligence. And I tried to write about the ongoing strike of writers and actors in Hollywood.
But before I could publish, it happened again. Donald Trump. Back to the top of page one. Unavoidable.
Donald Trump and eighteen others were indicted in Georgia on Monday over their efforts to overturn his 2020 election loss in the state. Prosecutors used a statute normally associated with mobstersto accuse the former president, his lawyers, and other aides of a “criminal enterprise” to keep him in power.
The nearly 100-page indictment details dozens of acts by Trump or his co-indictees to undo his defeat, including asking Georgia’s Republican secretary of state to find enough votes for him to win, harassing an election worker who faced down false claims of fraud, and attempting to persuade Georgia lawmakers to ignore the will of voters and appoint a new slate of electors favorable to Trump.
I’ve said it before, and I’ll say it again. I love sharing with you my opinion, something I was rarely able to do in my many years with CBS, NBC, and PBS where my task was to present the unvarnished facts of events without commentary. But I still try as hard as I can to make sure my opinions are clearly opinions, and my facts are accurate. I also work to provide you with links to primary sources, which I implore you to read for yourselves. I remain shocked at how many Americans can’t be bothered reading documents or watching videos and instead adopt the viewpoint of whatever talking head they favor from whatever cable or internet source provides the echo chamber in which they hear the views they are predisposed to believe without a challenging word to raise doubts or questions.
Please read the indictment, here. And listen to the whole one-hour recording of Trump’s phone call on January 2, 2021, with Georgia Secretary of State Brad Raffensperger, here. Do the work. Then you can decide what it means.
“The indictment alleges that rather than abide by Georgia’s legal process for election challenges, the defendants engaged in a criminal racketeering enterprise to overturn Georgia’s presidential election result,” Fulton County District Attorney Fani Willis, whose office brought the case, said at a late-night news conference. Willis’ investigation stretched over two and a half years.
The Georgia case is significantly different from the two cases previously filed in federal court by Special Counsel Jack Smith. Willis’s expansive detailing of events and use of laws (“RICO“) usually employed to go after mob bosses, will allow Fulton County prosecutors to tell the jury a story of a wide conspiracy to reverse election results in multiple states and build a compelling narrative of Trump’s actions in concert with numerous accomplices. But the logistics of putting Trump on trial along with eighteen other people, each of whom may file pretrial motions, in a racketeering indictment so complex and multilayered could result in many pre-trial motions and delay. Even so, Willis has asked the court to schedule a trial in March.
There are many interesting legal issues raised in this indictment. And whether I like it or not we will probably consider several of them in the months ahead. But first I expect you to do your homework.
For now, some quick observations. Trump’s defense, and those of many of his co-indictees, center around the idea that all he was doing was exercising his first amendment right to speak freely and criticize the election results. Another defense is that Georgia, in this indictment, and the federal government in the two indictments it has filed, is criminalizing conduct which is not criminal.
That’s where the “RICO” business comes in. RICO stands for the “Racketeering Influenced and Corrupt Organizations” Act. It was a groundbreaking piece of legislation passed in the United States in 1970 with the goal of financially crippling the Mafia. The act provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization. More than thirty states, including Georgia, have passed state RICO statutes based on the federal law.
Willis explained that “overt acts are not necessarily crimes under Georgia law in isolation but are alleged to be acts taken in furtherance of the conspiracy. Many occurred in Georgia, and some occurred in other jurisdictions and are included because the grand jury believes they were part of the illegal effort to overturn the results of Georgia’s 2020 presidential election.”
The Georgia charges have the potential to accomplish something that the federal indictment does not, holding people other than Trump accountable for what happened. The other eighteen defendants, accused of being members of a criminal enterprise, include lawyers, political operatives, state Republican Party officials, and even a Justice Department official. The indictment charges Rudy Giuliani, the former New York mayor who served as Trump’s personal attorney after the election, Mark Meadows, Trump’s White House Chief of Staff, and several other Trump advisers, including lawyers John Eastman, Sidney Powell, Jenna Ellis, and Kenneth Chesebro. Some of these are believed to be unindicted and unnamed co-conspirators in the federal cases.
The Georgia indictment reads like a story, a tale the public should find easy to understand. The recorded telephone call speaks for itself and has been available for the public to hear for more than a year. The indictment specifically accuses Trump with making false statements and writings for a series of claims he made to Raffensperger and other state election officials, including that up to 300,000 ballots “were dropped mysteriously into the rolls” in the 2020 election, that more than 4,500 people voted who weren’t on registration lists and that a Fulton County election worker, Ruby Freeman, was a “professional vote scammer.”
Giuliani, meanwhile, is charged with making false statements for allegedly lying to lawmakers by claiming that more than 96,000 mail-in ballots were counted in Georgia despite there being no record of them having been returned to a county elections office, and that a voting machine in Michigan wrongly recorded 6,000 votes for Biden that were in fact cast for Trump.
Another defendant, Stephen Cliffgard Lee, is alleged to have traveled to Ruby pFreeman’s home “with intent to influence her testimony.” Freeman and her daughter Shaye Moss testified to Congress last year about how Trump and his allies acquired surveillance footage from November 2020 to accuse both women of committing voter fraud, allegations that were quickly debunked yet spread widely across conservative media. Both women, who are Black, faced death threats.
Trump has personally used his social media platform to attack Willis and other prosecutors, describing them as “vicious, horrible people” and “mentally sick.” He has referred to Willis, who is Black, as the “racist DA from Atlanta.” His 2024 campaign included her in a recent video attacking prosecutors investigating Trump. Willis has raised concerns about security as her investigation has progressed, citing Trump’s “alarming” rhetoric and the racist threats she and her staff have received. Trump has also attacked the judges. He may be put on notice at his arraignment that further inflammatory posts could lead to his imprisonment pending trial.
And unlike the federal courts, where cameras are forbidden, the Georgia courts are generally open to cameras and live coverage of the trial in Georgia is likely. That will put the spotlight, usually reserved for Trump, on prosecutors and the legal process. The public proceedings may be just what the country needs.
On August 30, after this column was written, Mitch McConnell froze again. This time he was addressing reporters in his home state of Kentucky. The incident was recorded on video. It is long past time something was done about this problem. Just as the 25th Amendment to the Constitution was added to deal with the possibility of presidential incapacity, something must be done for members of Congress either by amendment or by changes in the House and Senate rules.
As I wrote back on August 13th, both Senators McConnell, a Republican, and Feinstein, a Democrat, should be allowed to retire gracefully now, with provisions made to fill the committee and leadership positions which will become vacant in a way which maintains the partisan balance. What is the purpose of waiting until one or both are carried out of the Capitol on a stretcher, leaving a crippled Senate behind?
Original Post from August 13
Knowing when to leave may be the smartest thing that anyone can learn. No truer words were ever spoken. Or written as a song lyric, in this case by Hal David and set to music by Burt Bacharach for the 1969 musical Promises Promises. It is a lesson few politicians ever learn.
Senate Minority Leader Mitch McConnell suddenly stopped speaking during a weekly Republican leadership news conference on July 26, 2023, appearing to freeze, and then went silent and was walked away. McConnell had been making his opening remarks about an annual defense policy bill when he stopped talking. He was led away from the press conference and towards his office by fellow GOP Sen. John Barrasso. A brief time later, McConnell returned and told reporters that he was “fine.”
It certainly didn’t look fine. It looked frightening. Keep in mind that this is the long serving Senate Republican leader. The man most responsible for decades of right-wing judges being appointed throughout the federal courts. The man who once bragged that his desk was the place liberal legislation passed by a Democratic majority House of Representatives went to die. But while I would cheer if McConnell were defeated in his next election, I do not wish him poor health.
McConnell is not alone. California Senator Dianne Feinstein, a Democrat, is showing obvious signs of cognitive decline, leaving her colleagues in Congress scrambling for ways to work around her. She spent months at home in California reportedly suffering from shingles. She returned to the Senate in a wheelchair, but she has been seen in committee meetings apparently confused as to the state of the proceedings and unsure of her vote. That incident occurred during a meeting of the Appropriations Committee. Feinstein also sits on the Judiciary Committee which considers pending appointments to the federal bench. It is sad to watch.
Feinstein is currently the oldest member of the Senate, at 90 years of age. Republican Senator Chuck Grassley of Iowa will be ninety next month. Grassley is the senior Republican on the Judiciary Committee and has been a key player blocking the appointment of judges he believes are too liberal. Grassley, who won reelection in 2022, has had his share of incoherent moments in public as well. Feinstein has announced she will retire when her term ends at the end of 2024. There have been calls for her to resign now, allowing California Governor Gavin Newsome to name someone to serve the remainder of Feinstein’s term.
The arcane rules of the Senate appear to make it impossible to change committee memberships during any session of Congress without a filibuster proof majority of sixty votes. Republicans have already said they will not cooperate. That would cost Democrats their one vote majority on the Judiciary Committee, which approves the nominations of all federal judges.
Neither McConnell nor Grassley have discussed retirement.
This problem is not limited to members of Congress. Republicans love to attack 80-year-old President Joe Biden, the oldest man to serve in the White House. But Donald Trump, at 77 years, isn’t far behind. And unlike Biden, who regularly rides a bicycle, Trump requires a golf cart on the links and looks like he is one cheeseburger away from a coronary. Neither man is ready to retire.
It takes a special kind of person to put the public interest ahead of their own ambition and, perhaps, vanity. It’s worth considering the cases of Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer. Justice Ginsburg died in 2020 at the age of eighty-seven, while still serving on the court. While her dedication to the job is admirable, her decision not to retire earlier, despite her age and health issues, she had several surgeries for cancer, changed the balance of power on the Court. The overturning of Roe v. Wade was a direct result.
In contrast, Justice Breyer, who is currently 85 years old, retired in 2022, even though he is apparently in good health. That decision has been praised by many as a wise move, allowing President Biden to appoint a replacement while the Democrats held the Senate majority.
As someone who now has a Medicare card in his pocket, even though I am some distance away from the ages of the people I noted above, I am the last to imply that one should be automatically disqualified from public office, or from doing any job, simply because of age. But we must all make an honest assessment as to our ability to perform in whatever role we undertake. This is certainly most true in the public sector. A public official unable to perform their duties is not doing anyone any good. The key is knowing when to leave.
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