The Week Ahead

Sunday, January 15, 2023

The past couple of weeks have been intense and draining. It’s clear things won’t ease up as we head into this week. But it’s impossible to live at this level of intensity on an ongoing basis, so if you’re like me, you probably need to ease back off the gas pedal a little. We’ll hit the high points this week but try to have a bit of fun too. We all need the sanity break.

First off, good news from my colonoscopy. Thanks to those of you who asked after me and told me your own stories! The doctor was very complimentary of my colon, which was a little off-putting and also very reassuring. And you know what I’m going to say next—if you’ve been putting off a colonoscopy or any other bit of preventative medicine, go ahead and get it done!

Since I wrote to you last, Attorney General Merrick Garland appointed a special counsel to investigate the spill of classified material in two locations connected to Joe Biden; first, an old office at the Penn Biden Center and, later in the week, in two rooms at his Wilmington, Delaware, residence. There are dueling principles that likely led Garland to make the appointment:

• There is still no evidence Biden acted willfully, which is essential to a finding that any of this is criminal. To the contrary, Biden’s team actually alerted the National Archives to the fact that it was holding missing items, voluntarily turned them over, and conducted additional searches that turned up the remaining items. Although the bar for opening a criminal investigation is quite low, something along the lines of a reasonable suspicion, on these facts, it’s hard to see that. Mistake, yes. Serious one, yes. National-security risk assessment needed? Absolutely. But willfulness or criminal intent? No.

• The U.S. Attorney in Chicago, John Lausch, who Garland asked to conduct a preliminary search, recommended appointing a special counsel. That recommendation would have been difficult for Garland to ignore without appearing to inject politics into the proceedings. It’s tough to find even a scintilla of evidence of willfulness on Biden’s part based on what’s publicly known at this point. That means that from a technical legal point of view, a criminal investigation isn’t warranted. But pragmatically, it’s not a terrible thing to have a special counsel, if only to ensure people have confidence in the process and the final outcome of the investigation. There is irony in the fact that Republican politicians who wanted Trump to get a pass for his willful defiance of a subpoena were willing to call for Joe Biden’s head with no trace of shame. But permitting a former U.S. Attorney who was appointed by Trump to run the investigation underlines the AG’s commitment to principled justice. No man is above the law.

That’s likely what animated the AG’s decision to appoint a second special counsel. We can’t rule out the possibility that Garland knows more than what’s public at this point in time and decided there was sufficient evidence to open a criminal investigation in the Biden matter (which doesn’t necessarily mean the focus would be on Biden; it could also be on others), but that seems unlikely on these facts. After all, none of this would have come to light if Biden’s team had just stashed away what they found. We are where we are because they acted honestly and with integrity.

Garland likely blew past the first requirement in the special counsel regulations that we looked at last week, that a “criminal investigation of a person or matter is warranted,” and focused on his long-standing concerns about ensuring public confidence in the Justice Department. The regulations contemplate the appointment of a special counsel where “under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”

So now we have two special counsels.

As for the Trump matter, there has been a lot of concern that Biden’s sins will cancel out Trump’s. It shouldn’t work that way in a world that operates on legal principles. Let me give you an example. Tom wants to kill a victim who we’ll call X. Tom researches X’s daily walk to work, gets his car in place, and runs them down at a stoplight, killing them. Meanwhile Bob is driving to work when he is distracted by someone who runs into the street. While he’s distracted, he accidentally hits X, who is crossing the street, killing them. You get the point. Apples to oranges. And the fact that they have a similar result doesn’t cancel out Tom’s guilt, just because Bob’s conduct is not necessarily criminal.

It’s possible for Trump’s conduct to be criminal and merit prosecution without the Biden situation resulting in that same outcome. It should trigger a review of how classified material is handled and lead to strengthening the procedures to protect the nation’s most critical secrets. But nothing we’ve seen yet in the Biden situation cancels out Trump’s refusal to turn over classified material the National Archives knew he had in his possession and requested for months, his refusal to comply with a lawful subpoena, or his lies to DOJ about returning classified materials that he in fact kept in his possession. It’s still apples to oranges.

Monday is the 40th celebration of Martin Luther King Jr. Day, a federal holiday. But if you live in Mississippi or Alabama, there’s more. The celebration of Dr. King’s life is combined with a state holiday honoring Robert E. Lee.

I’m not making this up.

Southern states like Virginia, North Carolina, Arkansas, and Louisiana had a long-standing state holiday honoring the Confederate war general Lee, sometimes along with Stonewall Jackson. So, Lee-Jackson Day became Lee-Jackson-King Day, although that “tradition” only continues in Mississippi and Alabama today. It’s a stark reminder that we have long been a country divided, where two Confederate war generals who fought to rip the country apart in the cause of slavery are remembered alongside Dr. King, who set an example for all of us by advocating for the use of nonviolent tactics even in the face of great wrongs and injustice to make progress on civil rights. It seems unfathomable that anyone would find the amalgamation to be appropriate.

Trump didn’t create the tension in the country, but he unleashed it. One of Sarah Huckabee Sanders’s first acts as governor of Arkansas was to ban the teaching of critical race theory in the state’s public school—where it is not taught. That didn’t stop her from releasing an executive order “to Prohibit Indoctrination and Critical Race Theory in Schools.” Sanders said, “We want to root that out and make sure it never sees the light of day here in the state of Arkansas.”

It’s going to be a struggle for the next two years to cut through the nonsense and focus on what’s real and what’s urgent. We’ll see that this week on Thursday when a Congress that’s more interested in scoring political points investigating Democrats than in governing has to deal with the U.S. reaching the statutory debt limit. Treasury Secretary Janet Yellen will begin taking “extraordinary” measures to prevent default but has put House Speaker Kevin McCarthy on notice that while she expects the country to be able to stay afloat until early June, there will need to be either a suspension of or increase to the debt limit. Yellen warned that “failure to meet the government’s obligations would cause irreparable harm to the U.S. economy, the livelihoods of all Americans, and global financial stability.”

It’s one thing to wage culture war, but it’s another to govern. I fear we are going to have ongoing concerns about the ability of the hyper-political House to manage the day-to-day details of running the country. While most Americans will turn a blind eye—we’ve never had a default before, so why fear it now?—an important part of our discourse is to make sure the people around us are aware of what’s going on and the measure of irresponsibility with which Republicans have chosen to lead the House. The time to begin to make the case for better leadership in 2024 is now.

More than once this week I’ve reflected that Republicans are already engaging in that campaign. How else do you explain the hypocritical manner in which they handled the classified-documents issues that the leaders of both parties now face? There is no objective analysis, only tribal partisanship. We need to be careful to avoid that. If the facts, when they are all revealed, show that Joe Biden bears responsibility, he should be held accountable. But the same is true for Trump. And Republican leaders who demand that visitor logs be released for Biden are the same people who tolerated the Trump White House’s refusal to release logs while he was in office, let alone logs for Mar-a-Lago, where he loosely stored classified material in reach of the resort’s guests.

Facts still matter; they have to. So as frustrating as it may seem in the moment, our job is to be armed with them and to have patient conversations that encourage people over time to see the hypocrisy. The issue with the visitor logs is a good one for doing that. “Explain why you think Biden should release them but Trump doesn’t have to” is a stumper of a question, for even the staunchest fan of the former President. It’s our job to continue to provide facts and ask tough questions and trust that many of our fellow citizens will end up at the right result, even if it takes time. Dr. King once said, “The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.” We are living in a moment of challenge and controversy, which makes where we stand critically important.

We’re in this together,

Joyce