Hearings And Opinions
Also, a chicken
Happy Monday. The week ahead is going to be full of January 6 committee hearings and Supreme Court opinion days, so I’ll start us off with a picture of one of my baby chicks.
This is Mavis. She’s six weeks old today and growing fast! She’s a bit on the awkward side at the moment—going through an early molt, but shows signs of becoming a beauty. You’re probably looking at her feet and thinking I’ve lost my mind, that I’m living with baby dinosaurs and thinking they’re lovely, but really, she’s going to be gorgeous. Mavis is a Blue Laced Red Wyandotte, which means she should be a lovely blue-gray color with red around the edges. You can see the beginnings of that if you look closely at her feathers. This type of chicken is prone to lots of variations, so we’ll see.
Now that I’ve distracted you with chickens, we’re on to the week.
There will be January 6 committee hearings on Tuesday (Trump’s efforts to steal Georgia) and Thursday (DOJ day). They are both sure to be intense. Adam Schiff, D-Ca, told CNN the committee will offer evidence of Trump’s involvement. How direct that evidence will be remains to be seen, but this is clearly going to be a big week.
The Supreme Court’s calendar says it will issue opinions…wait for it: Tuesday and Thursday. They typically start at 10 ET and issue opinions about every ten minutes until they’re done for the day. We don’t know how many or which ones in advance. If you want to follow along, scroll to the bottom of this page to the “recent opinions” heading. New opinions will show up at the top of that section as they’re released. Remember to keep refreshing the page to see them. We’re still waiting on abortion and gun permit decisions, as well as 16 other cases. The Court usually wraps by the end of June, but it has (rarely) issued opinions into July.
Many of you will have seen Jack Goldsmith’s (he served at DOJ as the Assistant Attorney General for the Office of Legal Counsel during the George W. Bush administration) piece in the New York Times this morning, rehearsing how difficult the prosecutive decisions Merrick Garland must make are. It’s an interesting piece and worth your time. It rehearses some of the tough decisions ahead. But, ultimately, the Federal Principles of Prosecution, the guidelines for deciding whether to charge a defendant or not, apply to every case. Prosecutors and especially attorneys general are skilled at making these decisions. And they should not be made more deferentially to former presidents than for “run of the mill” criminals. That’s how the rule of law works.
The cloud hanging over the process is Trump’s continuing engagement in the political process. He tries to play the role of kingmaker in Republican politics and is clearly contemplating another run in 2024. If not held accountable, he has no reason to quit shredding the Constitution whenever that works to his benefit. A successful prosecution would protect the country.
So, that said, here we go. It’s going to be a week! I’m in New York for coverage of Tuesday’s hearing and then back home. But before I end this rather lengthy post, I wanted to flag something that’s been bothering me ever since last Thursday’s hearing, for those of you who want to read a little more. Maybe it’s not a big deal in the ultimate scheme of things, but it keeps resurfacing for me. It was this exchange between Pence’s counsel, Greg Jacob and the committee:
So during that meeting on the fourth, I think I raised the problem that both of Mr. Eastman’s proposals would violate several provisions of the Electoral Count Act. Mr. Eastman acknowledged that that was the case, that even what he viewed as the more politically palatable option would violate several provisions.
But he thought that we could do so because in his view the Electoral Act was unconstitutional. And when I raised concerns that that position would likely lose in court his view was that the court simply wouldn’t get involved. They would invoke the political question doctrine and therefore we could have some comfort proceeding with that path.
Most of the commentary on this stunning information focused on Eastman’s concession, in a meeting where Trump was present, that their plan violated the law. That’s important and perhaps one of the keys to establishing what Trump knew and what he nonetheless continued to do.
But what continues to disturb me is Eastman’s easy acknowledgement, according to Jacob, that he’s aware his plan violates the law and essentially says, so what? He thinks they can pull off their illegal plan, a coup, because the courts will stay out of the fray.
The reason he might think that is something called the political questions doctrine, which deems some disputes inappropriate for judicial review because discretionary power over them should be left to the politically accountable branches of government (i.e., the President and Congress). For instance, impeachment is viewed as a political question, not reviewable by the courts because the Constitution vests it squarely in the hands of Congress.
Although Jacob got Eastman to concede he’d lose in court, Eastman’s formulation of a coup around the idea the courts would stay out of it speaks volumes about where the folks involved in the coup were. The calculus seems to have been more about whether they could get away with it than whether it was lawful, or what American voters wanted.
That’s not the first time we’ve seen Trump or his administration try to get away with something that didn’t pass the smell test because they thought the courts or some other decision-maker would go along with them, starting with the Muslim ban.
On this one hand, this underlines just how important the integrity of our federal judges is and why Americans should consider who will be appointing judges (the person in the oval office) when deciding whether to vote and who to vote for. Republicans have traditionally rallied their voters around this issue during presidential election years. Democrats, not so much.
But there’s a larger issue here that we should not lose sight of. While we’re focused at the moment on whether DOJ, or perhaps Fulton County District Attorney Fani Willis, will serve up accountability to Trump and those around him, we shouldn’t forget that accountability in elections may matter even more. And that as voters, we may have even more power than the prosecutors. Ultimately, it was voters in 2020 who told Trump no. It is up to voters in the midterms and again in 2024. It’s why Trump supporters have worked so hard to ensnare our elections in anti-democratic measures and why we are going to have to work hard and turn out in record numbers to make sure every vote gets counted in these upcoming election cycles. We all need to consider where we fit in—there is work we can do, everything from working to register voters to turning out the vote, to acting as a poll watchers will matter. We all have a role we can play. We’ll talk more about that in the weeks ahead.
Remember to leave your questions, ideas, suggestions in the comments to this post. You never know when they might be exactly what someone else needs to get plugged in. I look forward to seeing your thoughts and sharing mine.
We’re in this together,
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