ABC Treats Kamala’s 21-Year Old Misstatement about Prosecutions as News but Not Trump’s Daily Lies about His Own Crimes

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As the mainstream press continues to soil itself like toddlers over Kamala Harris’ interview tonight, I was going to use this CNN piece — suggesting questions about how the VP’s stance on immigration has changed — as an example of the complete collapse of any sense of newsworthiness.

After all, Donald Trump has still never been asked, much less answered, how he plans to fulfill his promise of mass deportations, something that might be impossible without dramatic escalation of police force against both citizens and not. He hasn’t been asked how he’ll pay for it, which would be prohibitively expensive. He hasn’t asked who will do the jobs, such as in agriculture, that keep America’s cost of living relatively low. He hasn’t been asked if he’ll separate families, especially marriages empowered by Obergefell.

Trump hasn’t been asked the most basic questions about one of his only policy promises.

CNN’s Eva McKend has really good questions about immigration policy. In another place and time they’d be totally valid questions!

But given the failure by the entire press corps to ask Trump about a policy promise that would serve as — and assuredly is intended to serve as — a bridge to fascism, it is the height of irresponsibility to waste time on the shifts in Harris’ immigration views, because they don’t matter in the face of Trump’s promises to sic cops on American families in pursuit of brown people.

So that was going to be my exemplar of how completely the press corps has lost any sense of proportionality regarding what counts as news.

Then I read this piece from ABC, which makes a big deal out of the fact that in 2003 — 21 years ago!!! — some Kamala Harris campaign fliers said she prosecuted over a hundred cases, when she should have said she was involved in that many.

But during a debate held in the runup to Election Day 2003 on KGO Radio, Harris’ then-opponent, veteran criminal defense attorney Bill Fazio, accused her of misleading voters about her record as a prosecutor and deputy district attorney in California’s Alameda County.

“How many cases have you tried? Can you tell us how many serious felonies you have tried? Can you tell us one?” Fazio asked Harris, according to audio ABC News obtained of the debate, which also included then-current San Francisco District Attorney Terence Hallinan.

“I’ve tried about 50 cases, Mr. Fazio, and it’s about leadership,” Harris responded.

Fazio then pointed out campaign literature where Harris had been claiming a more extensive prosecutorial record.

“Ms. Harris, why does your information, which is still published, say that you tried hundreds of serious felonies? I think that’s misleading. I think that’s disingenuous. I think that shows that you are incapable of leadership and you’re not to be trusted,” Fazio said. “You continue to put out information which says you have tried hundreds of serious felonies.”

[snip]

Asked this week about Harris’ prosecutorial experience before she became district attorney, a spokesperson for Harris’ presidential campaign used slightly different language to describe her record — saying she was “involved in” hundreds of cases.

This is insane!! Having prosecuted 50 felonies is a lot, for an entire career! To make a stink about this 21-year old misstatement would be unbelievable on its face.

But it is just contemptible, given the amount of lies Donald Trump tells about his own crimes that ABC lets go unmentioned.

Just as one example, check out how ABC covered Donald Trump’s August 8 Mar-a-Lago presser. In that presser, Trump seems to have falsely claimed he did oversee a peaceful transfer of power (the only lie NYT called out in its coverage of this presser). He lied about the four people who were killed that day. He lied about his role in sending his mob to the Capitol. He lied about what those mobsters chanting “Hang Mike Pence” were seeking to do. He lied about how Jan6 defendants are being treated. [All emphasis here and elsewhere my own.]

QUESTION: Mr. President, you were – you just said that it was a peaceful transfer of power last time when you left office. You didn’t (inaudible) …

TRUMP: What – what’s your question?

QUESTION: My question is you can’t (inaudible) the last time it was a peaceful transfer of power when you left office?

The second one (ph) …

TRUMP: No, I think the people that – if you look at January 6th, which a lot of people aren’t talking about very much, I think those people were treated very harshly when you compare them to other things that took place in this country where a lot of people were killed. Nobody was killed on January 6th.

But I think that the people of January 6th were treated very unfairly. And they – where – they were there to complain not through me. They were there to complain about an election. And, you know, it’s very interesting. The biggest crowd I’ve ever spoken to, and I said peacefully and patriotically, which nobody wants to say, but I said peacefully and patriotically.

Trump made a misleading crack meant to suggest that Arthur Engoron undervalued Mar-a-Lago.

TRUMP: It’s a hard room because it’s very big, if you don’t …

(LAUGHTER)

… this is worth $18 million.

Trump lied that the prosecutions against him — all of them — are politically motivated. He lied that “they” have weaponized government against him. He lied that the Florida case, in which he was investigated for the same crime as Joe Biden, was weaponized. He falsely claimed that the NY cases are controlled by DOJ.

TRUMP: Because other people have done far bigger things in see a ban [ph] and sure, it’s politically motivated. I think it’s a horrible thing they did. Look, they’ve weaponized government against me. Look at the Florida case. It was a totally weaponized case. All of these cases.

By the way, the New York cases are totally controlled out of the Department of Justice. They sent their top person to the various places. They went to the AG’s office, got that one going. Then he went to the DA’s office, got that one going, ran through it.

No, no, this is all politics, and it’s a disgrace. Never happened in this country. It’s very common that it happens, but not in our country. It happens in banana republics and third-world countries, and that’s what we’re becoming.

Trump claimed he wouldn’t have wanted to put Hillary in jail when, on his orders, DOJ investigated the Clinton Foundation for the entirety of his term and then John Durham tried to trump up conspiracy charges against her (and did bring a frivolous case against her campaign lawyer). Trump also lied about calming, rather than stoking, the “Lock her up” chants at rallies. Trump lied about what files Hillary destroyed after receiving a subpoena (and who destroyed them).

TRUMP: I don’t think it’s appropriate for me to talk about it. I think it’s a tragic story, if you want to know the truth. And I felt that with Hillary Clinton, too. You know, with Hillary Clinton, I could have done things to her that would have made your head spin. I thought it was a very bad thing, take the wife of a President of the United States and put her in jail. And then I see the way they treat me. That’s the way it goes.

But I was very protective of her. Nobody would understand that, but I was. I think my people understand it. They used to say “lock her up, lock her up,” and I’d say “just relax, please.” We won the election. I think it would be very – I think – I think it would have been horrible for our country if I – and we had her between the hammering of all of the files.

And don’t forget, she got a subpoena from the United States Congress, and then after getting the subpoena, she destroyed everything that she was supposed to get. I – I – I could – it – I didn’t think – I thought it was so bad to take her and put her in jail, the wife of a President of the United States. And then when it’s my turn, nobody thinks that way. I thought it was a very terrible thing. And she did a lot of very bad things. I’ll tell you what, she was – she was pretty evil.

But in terms of the country and in terms of unifying the country, bringing it back, to have taken her and to have put her in jail – and I think you know the things as well as I do. They were some pretty bad acts that she did.

Depending on how you count, that’s around twelve lies in one hour-long press conference. They’re proof of Trump’s abuse of the presidency, his refusal to cooperate with an investigation like Joe Biden had, his lifelong habits of fraud, and his assault on democracy.

And these are only the lies about his own (and his eponymous corporation’s) crimes! They don’t include the lies about abortion or gun laws and shootings, other lies about the law he told in that presser.

And yet ABC covered none of those lies, focusing instead on Trump’s false claims about crowd size.

Crowd size.

These aren’t the only lies about justice Trump routinely tells. He routinely lies that he “won” the documents case, that he was declared innocent or that Biden was only not prosecuted because he was too old. They don’t include the lies Trump has told about the Hunter Biden case, the Russian investigation, his actual actions in the Ukraine impeachment. Trump continues to lie about whether he sexually assaulted E Jean Carroll. He lies about his Administration’s jailing of Michael Cohen to shut him up.

Then there are Trump’s renewed false claims, in the last day, about the superseding indictment against him.

Trump lies all the time. He lies about the cases against him, about his own crime. He lies with a goal: to present rule of law as a personal grievance. Those lies go to his core unfitness to be President.

And yet, aside from some good reporting (particularly from Katherine Faulders) on these crimes, ABC never bothers to fact check Donald Trump’s lies about rule of law, not even his own prosecutions.

It is the height of irresponsibility to adopt this double standard — to ignore Trump’s corruption of rule of law while chasing a campaign exaggeration made two decades ago. It was bad enough that the press corps sits there, docilely, as Trump corrupts rule of law every time he opens his mouth. But to then try to make a campaign issue about whether Kamala Harris was involved in or prosecuted 50 cases decades ago?

ABC claims that Kamala Harris made misstatements. But their own failure to report on Trump’s false claims is a far, far greater misrepresentation of the truth, and it’s a misrepresentation of the truth they repeat every day.

As Maggie Haberman Unabashedly Joins the Kayfabe, Tim Walz Sings the Menards Jingle

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Sunday marked the 1/3 mark for Kamala Harris’ presidential campaign (36 of 107 days). Yesterday, she announced her first sit-down interview (with Dana Bash, whom I consider a poor choice); the media hounds are already wailing that, like interviews Barack Obama did with Joe Biden, Mitt Romney did with Paul Ryan, and Trump did with Mike Pence, the Vice President will do the interview with her own VP nominee.

By comparison, Sunday marked the 9/10 mark for Trump’s presidential campaign (650 of 720 days).

Meanwhile, there are a slew of question to which media hounds have not bothered to demand answers from Trump:

  • Will he hire his failspawn to work in White House again?
  • What is Trump’s business relationship with Emiratis and Saudis?
  • Where are his tax returns?
  • Did Trump get $10 million from Egypt to stay in 2016 race?
  • Where are the missing classified documents?
  • What did Putin say in Helsinki?
  • Did Trump have an overt quid pro quo on the Stone, Bannon, and Manafort pardons?
  • How much of his campaign donations has he spent on legal defense?
  • How and (why?!?!) does Trump plan to implement his plan of mass deportation?

In the wake of the DNC, there have been some really good critiques of the media’s failure. Asawin Suebsaeng mocked at the “mollycoddled hogs” who bitched about their own access while bemoaning that of influencers, the bloggers of 2024.

Much of what I witnessed and heard about during my time in Chicago reinforced my preexisting beliefs that far too many so-called elite members of my profession — national political media scribes who fancy themselves as speaking truth to power, but more often just speak words to financially destructive Google algorithms — are mollycoddled hogs who are doing everything they can to fail to meet the enormity of this moment.

Like Suebsaeng, Will Bunch grieved the way journalists were blowing this most important election. He cited three examples:

  • Axios’ Alex Thompson laundering a right wing smears about a typo Tim Walz’ campaign made in 2006 just like he laundered right wing smears about Hunter Biden with little notice from Democrats
  • Rich Lowry’s argument that if Trump repeats a lie over and over — like his 2016 claim that he would build a wall and Mexico would pay for it — that would amount to “character” that might launch him to victory
  • Various “fact checks” that discount direct quotations of Trump’s comments because he later reneged on those quotes

Citing Mark Jacobs, Bunch also flipped Suebsaeng’s focus on mainstream gripes about influencer access. Bunch laid out how, in significant part because of declining trust in mainstream media, those influencers are actually the best route for Kamala Harris to reach voters, particularly the ones who can make the difference in the election.

Jacob has harsh words for how reporters have covered the race, writing that “too many political journalists are marinating in the Washington cocktail culture, writing for each other and for their sources — in service to the political industry, not the public.” But he also notes that traditional media can’t figure out how to compete for young eyeballs against sites like edgy and fast-paced TikTok. Jacob pointed out that public faith in mass media has plunged from 72% in 1976, after Watergate, to just 32% today.

You know who gets the new landscape better than anyone else? Kamala Harris.

The vice president and Democratic nominee is running to be America’s first post-media president. In Chicago, much was made of the fact that Team Harris and the Democrats invited 200 sometimes fawning internet “content creators” who got VIP treatment while mainstream journalists fought over nosebleed-level seats and refrained from eating or going to the bathroom for fear of losing them.

I would add several comments about the real tensions between mainstream reporters and influencers.

First, these discussions of tensions between influencers and journalists have ignored what has happened among right wing media in the last decade– during which time people who would have formerly been called “influencers” (or, more accurately, trolls) have become mainstream, including even former shitty blogger JD Vance. What Harris has done by welcoming these influencers was to foster a progressive media infrastructure akin to the one Barack Obama largely let collapse after his win. If Democrats are lucky, in a matter of years, influencers will be able to feed lazy hacks like Alex Thompson stories that he’ll package up and DC insiders will imagine that amounts to journalism. Until then, they may be able to magnify genuine right wing scandals that the media otherwise ignores. One source of the double standard with which mainstream media has always treated Trump, for example, is this pressure from the right, which really does dictate a lot of press coverage (and which, the Douglass Mackey exhibits showed, those trolls explicitly set out to do as early as 2015).

Second, one thing few people have — still! — accounted for is the degree to which Trump has never been asked to explain policy, allowing him to instead coast on the goodwill and trust accrued over decades of appearing in people’s living room as a TV star. The imagined authenticity that Trump — still! — wields from that gives him an enormous advantage.

To counter that, there’s real value in Tim Walz doing appearances with influencers like this one.

Not only will Walz appear to be an authentic Midwesterner because he shops at Eau Claire based big box store Menards (I, a snooty outsider when I lived in the Midwest and someone who had other people do my gutters, tended to shop at the pricier Lowes instead).

 

 

And there’s no quicker way to convey that he understands how middle class people budget than his comment about sending in receipts to get an 11% rebate.

Most of those that Suebsaeng called mollycoddled hogs would be hard-pressed to understand, much less explain, the thick cultural connotations of this video. Instead, Walz just performs it, with his off-tune Menards jingle rendition to boot.

In other words, it’s not just that Harris has chosen to prioritize those who have trust with the voters she needs to mobilize. Influencers do several other things — things that are absolutely crucial for competing against Trump — that were encouraged on the right but are deemed a slight to journalism now.

Meanwhile, journalists treated with respect are increasingly pumping out Trump-scripted propaganda. Maggie Haberman and Jonathan Swan have been releasing increasingly supine coverage for months. They falsely reported that a platform that enshrines fetal personhood presented a “softened” GOP face on abortion. After a year of reporting on policies that directly parallel those in Project 2025, Maggie floated Trump’s complaints that Democrats were calling him on it. When that team reported on Trump’s Mar-a-Lago “press conference,” the only lies they called out were Trump’s claim to have left office peacefully — but not his lies about the Biden-Harris hand-off, Kamala’s record, Biden and Pelosi’s demeanor, prosecutions of him, Willie Brown and a near-crash in a helicopter, the price of bacon, polling, or even crowd size.

But with yesterday’s coverage of the RFK Jr and Tulsi Gabbard news, this team really stepped over into joining Trump’s faked conflict. Both the subhead and the story presented the two as “progressive Democrats,” adopting Trump’s apparent goal in countering the increasing number of Republicans who are endorsing Kamala Harris.

Both Mr. Kennedy and Ms. Gabbard spent most of their public life as progressive Democrats. Only four months ago, Mr. Trump was calling Mr. Kennedy a “Radical Left Lunatic” who was “far more LIBERAL than anyone running as a Democrat.” Trump allies pushed stories about Mr. Kennedy’s record of supporting abortion rights and far-left environmentalism as they tried to make his independent candidacy less appealing to Trump voters.

The basis for treating RFK as such was a citation from comments Trump made earlier this year, when he was lying about Kennedy in order to improve RFK’s value as a spoiler to Joe Biden. It was all a show, the kind of drama any wrestling promoter uses to enhance the character of his conflicts. And yet Maggie and Swan just quoted it as if they’re too stupid to know Trump’s comments were all a show.

When Maggie and Swan “broke” the “news” that Tulsi was helping Trump with debate prep just weeks earlier, they included details also appearing in yesterday’s piece (such as about Tulsi’s long friendship with Trump, which totally undermines the claim that this association is news), but also repeated something else that is, at best, Trump’s interpretation of how well Tulsi did in the 2019 debate against Kamala.

Ms. Gabbard, who left the Democratic Party after her 2020 presidential run and has rebranded herself as a celebrity among Trump’s base of support, has long been friendly with Mr. Trump and was briefly considered to be his running mate. But her involvement in Mr. Trump’s debate preparation, which has not previously been reported, was partly because of her own performance in a 2019 Democratic presidential primary debate, when Ms. Gabbard eviscerated Ms. Harris in a memorable onstage encounter. [my emphasis]

The unmarked repetition of this opinion is particularly relevant given that others argue Kamala eviscerated Tulsi, precisely because the then-Senator called out all the ways Tulsi was already simply posing as a Democrat so as to platform her attacks on the party.

 

And Democrats have long been repulsed by Tulsi’s apologies for dictators, starting with Bashar al-Assad, but including Vladimir Putin.

You don’t have to decide which woman eviscerated the other. Indeed, avoiding such comment would invite a better explanation for Tulsi’s role in Trump’s orbit, one that these two Trump-whispers don’t claim to know.

Do they — two Trump whisperers who have covered Trump for years — not know that Trump is just a carnival barker, setting up conflict to distract people performing a role called journalism? Have they unwittingly come to merge their own consciousness with his? Or are they just wittingly part of the kayfabe now themselves?

Whichever it is, as actual journalists continue to treat Trump’s obvious con without comment, it flips the complaints about influencers back on its head.

The coverage Trump has enjoyed has long worked to pressure straight journalists into covering things with a right wing spin. And these days, it’s not clear whether the straight journalists need any help.

The Superseding Trump Indictment Is about Obstruction as Much as Immunity

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In this Xitter thread, I went through everything that had been added or removed from the superseding indictment against Trump, based on this redline. The changes include the following:

  1. Removal of everything having to do with Jeffrey Clark
  2. Removal of everything describing government officials telling Trump he was nuts (such as Bill Barr explaining that he had lost Michigan in Kent County, not Wayne, where he was complaining)
  3. Removal of things (including Tweets and Trump’s failure to do anything as the Capitol was attacked) that took place in the Oval Office
  4. Addition of language clarifying that all the remaining co-conspirators (Rudy Giuliani, John Eastman, Sidney Powell, Kenneth Chesebro, and — probably — Boris Epshteyn) were private lawyers, not government lawyers
  5. Tweaked descriptions of Trump and Mike Pence to emphasize they were candidates who happened to be the incumbent
  6. New language about the treatment of the electoral certificates

Altogether, the changes incorporate not just SCOTUS’ immunity decision, but also the DC Circuit’s Blassingame decision deeming actions taken as a candidate for office are private acts, and SCOTUS’ Fischer decision limiting the use of 18 USC 1512(c)(2) to evidentiary issues.

The logic of Blassingame is why Jack Smith included these paragraphs describing that Trump and Pence were acting as candidates.

1. The Defendant, DONALD J. TRUMP, was a candidate for President of the United States in 2020. He lost the 2020 presidential election.

[snip]

5. In furtherance of these conspiracies, the Defendant tried–but failed–to enlist the Vice President, who was also the Defendant’s running mate and, by virtue of the Constitution, the President of the Senate, who plays a ceremonial role in the January 6 certification proceeding.

As I’ve said repeatedly, it’s not clear that adopting the Blassingame rubric will work for SCOTUS, even though they did nothing to contest this rubric.

That’s because Chief Justice Roberts used Pence’s role as President of the Senate to deem his role in certification an official responsibility, thereby deeming Trump’s pressure of Pence an official act. Smith will need to rebut the presumption of immunity but also argue that using these conversations between Trump and Pence will not chill the President’s authority.

Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict ofInterest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14.

At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.

It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

This is the most important advantage of superseding the indictment. When someone boasted to Bloomberg that Jack Smith’s purported decision not to have a mini-trial on these issues was a “win” for Trump, they envisioned that this meant there would be no media friendly election-season developments, providing a way to get through (a successful or stolen) election so future President Trump could throw the case out.

Such a hearing would have been the best chance for voters to review evidence about Trump’s efforts to overturn the 2020 election result as he campaigns to regain the White House.

The decision is a win for Trump and his lawyers, who have fought efforts to reveal the substance of allegations against the former president.

The decision to supersede this indictment may have turned what could have been an immediate dispute about the viability of the indictment at all into an evidentiary dispute to be managed later. We’ll find out more on Tuesday.

At the very least, Jack Smith suggests he has something viable on which to arraign Trump (and Trump’s Xitter wails treating this as a real indictment suggest he may believe that).

Smith will still need to overcome the presumption created out of thin air by John Roberts on all of this. But he may do so from a posture where the utter absurdity of Roberts’ ruling are made obvious.

That’s one reason it’s important that Smith has included the tweet via which Trump almost got Mike Pence assassinated.

Smith rationalized doing so by emphasizing that Trump wrote it neither in the Oval Office nor with anyone’s assistance.

92. Beginning around 1:30 p.m., the Defendant, who had returned to the White
House after concluding his remarks, settled in the dining room off of the Oval Office. He spent much of the afternoon reviewing Twitter on his phone, while the television in the dining room showed live events at Capitol.

[snip]

94. At 2:24 p.m., the Defendant personally, without assistance, issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” [my emphasis]

This situates this Tweet, which almost got Mike Pence killed, a private act for which Trump has no immunity. It may not work. But that’s the logic.

But the other changes in this passage are all about Fischer, about showing how Trump deliberately sicced a mob on the Capitol with the goal of making it impossible to count the certifications.

After adding language from Trump’s speech (included based on the justification that the rally was paid for by private funds) in which he emphasized the certification process, Smith added other language describing how Trump’s mob disrupted the vote certification over which Pence was presiding.

Everything italicized below is new.

86d. The Defendant specifically referenced the process by which electoral votes are counted during the proceeding, including by stating, “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.”

[snip]

90. On the floor of the House of Representatives, the Vice President, in his role as President of the Senate, began the certification proceeding. At approximately 1:11 p.m., the Vice President opened the certificates of vote and certificates of ascertainment that the legitimate electors for the state of Arizona had mailed to Washington, consistent with the ECA. After a Congressman and Senator lodged an objection to Arizona’s certificates, the House and Senate retired to their separate chambers to debate the objection.

91. A mass of people-including individuals who had traveled to Washington and to
the Capitol at the Defendant’s direction-broke through barriers cordoning off the Capitol grounds and advanced on the building, including by violently attacking law enforcement officers trying to secure it.

92. Beginning around 1:30 p.m., the Defendant, who had returned to the White
House after concluding his remarks, settled in the dining room off of the Oval Office. He spent much of the afternoon reviewing Twitter on his phone, while the television in the dining room showed live events at Capitol.

93. At 2:13 p.m., after more than an hour of steady, violent advancement, the
crowd at the Capitol broke into the building, and forced the Senate to recess. At approximately 2:20 p.m., the official proceeding having been interrupted, staffers evacuating from the Senate carried with them the legitimate electors’ certificates of vote and their governors’ certificates of ascertainment. The House also was forced to recess.

94. At 2:24 p.m., the Defendant personally, without assistance, issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

95. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

96. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

This narrative ties the mob, particularly the storming of the Senate chamber, directly to Trump’s goal of interrupting the counting of the electoral certificates. This instrumentality was always a part of the indictment — has been part of this investigation since no later than January 5, 2022. But Roberts’ dual interventions in the January 6 prosecutions forced Smith and crime scene prosecutors working under US Attorney Matthew Graves to make it far more explicit.

A significant number of mobsters either knew the import of the certificates ahead of time, and/or heard Trump describe the goal at the Ellipse, and when they stormed the Capitol, assaulted cops, and occupied the space that the Vice President had only just evacuated, they had the goal of preventing the authentic certificates from being counted.

And Jack Smith is making this argument before Judge Chutkan even as other prosecutors are making a parallel argument before other judges.

As DOJ laid out in their filing describing how they plan to retry Matt Loganbill (who joined Alex Jones as he opened a second, eastern front on the attack on the Capitol) under the new Fischer standard, Loganbill had the goal of getting Pence to shred the envelopes as early as December 20, 2020, and after he stormed the Capitol, he headed towards the Senate where he believed they were counting the vote.

  • On December 20, 2020, the defendant wrote to Facebook, “This would take place Jan 6 Witnesses should be 60 feet away while Pence counts the Electoral College votes . . . Pence should open all the envelopes and then stack all the EC ballots in a pile, he should then shred all the envelopes and burn the shreds.” Gov. Ex. 302.47.
  • On December 30, 2020, the defendant wrote to Facebook, “CALL SENATOR JOSH HAWLEY’S OFFICE T O D A Y AND LET HIM KNOW YOU SUPPORT HIS INTENT TO BE THE FIRST REPUBLICAN SENATOR TO CHALLENGE THE ELECTORAL VOTE ON JANUARY 6.” Gov. Ex. 302.49.
  • On January 6, 2021, at 1:20 p.m., the defendant sent a text message, “Are you watching what’s going on in the house/ elector certification.” Gov. Ex. 303.
  • On January 7, 2021, the defendant replies to a comment by another person on Facebook saying, “Why do you think we were trying every means possible to stop these idiots from stealing the presidency and destroying this nation.” Gov. Ex. 302.65

Evidence at trial showed Loganbill entered the Capitol, the location where the Electoral College ballots were located and where Congress and the Vice President were conducting the official proceeding.6 Gov Exs 101.1 and 701. Once inside, the defendant proceeded towards the Senate, where Congress would be handing objections to the Electoral College vote – attempting to obstruct Congress’ certification of the Electoral College ballots. The defendant knew where he was going. The government admitted a Facebook post by the defendant on January 7 and 8, 2021, he wrote, “They didn’t [let us in] at the chamber, we could have over run them, after 10-15 minutes of back and forth, we walked out” and “The only place [the police officers] wouldn’t give was the hallway towards the Rep. chamber.” Gov Exs 302.66 and 302.82, respectively. The “chamber” and “Rep. chamber” were where the Vice President and members of Congress would have been counting and certifying the Electoral College ballots. Gov Ex 701

[snip]

From this evidence, including the defendant’s express statement related to the destruction of the electoral ballots, the Court would be able to find, beyond a reasonable doubt, that the defendant acted to obstruct the certification of the electoral vote, and specifically, that he intended to, and attempted to, impair the integrity or availability of the votes (which are documents, records, or other things within the meaning of Fischer) under consideration by the Joint Session of Congress on January 6, 2021.

Of course, with any retrial, both parties would be permitted to introduce new evidence, or start the record over anew. Indeed, the government would likely introduce additional evidence related to the ballots and staffers attempts to remove the ballots from the chambers when the riot started.

6 According to the testimony of Captain Jessica Baboulis’ testimony, “[t]he official proceeding had suspended due to the presence of rioters on Capitol Grounds and inside the Capitol. ECF No. 31 at 23. As the Court said in its verdict, “It doesn’t matter to this count if he entered the building after the official proceeding had been suspended and Pence had been evacuated.” ECF No. 40 at 5. Loganbill attempted to and did obstruct the Electoral College vote, including the counting of ballots, the presence of members of Congress, and the presence of the Vice President.

Here’s how DOJ plans to prove that the Chilcoats, Shawndale and Donald, planned to prevent the votes from being counted by occupying the Senate.

[A]t approximately 2:46 p.m., the defendants watched rioters attempt to break open windows, then entered the Capitol building itself through a broken-open door on the building’s northwest side. A cell phone video shows that, after they learned of the breach, Donald Chilcoat cautioned Shawndale Chilcoat that they should let other rioters enter first. That way, if the police deployed pepper spray, those other rioters, and not the Chilcoats, would bear the brunt of it. In other words, the defendants knew they were not welcome, and they knew their entry might be met with force. After the defendants entered the building, they traveled to the Senate Chamber – the very place where the proceeding was taking place – and joined other rioters in occupying it. There, they took photographs and remained in the chamber while other rioters searched desks belonging to the former Vice President and to Senators.

Through their conduct, the defendants demonstrated an intent to invade and occupy the Capitol building and to stop the certification of the electoral college vote. And, critically, they were aware that this proceeding involved records, documents, or other things—specifically, the electoral votes that Congress was to consider. On January 4, 2021, via Facebook, a friend of Shawndale Chilcoat told her to “give Rob Portman a call and let him know what you think of him not rejecting the fraudulent votes.” Shawndale Chilcoat affirmed “just did.” Then, late on January 5 or early on January 6, Shawndale Chilcoat posted a message to Facebook saying that “[Vice President] Pence is stating he can not reject the votes.” On January 7, 2021, after the riot, Shawndale Chilcoat admitted “we were just trying to stop them from certifying the votes and didn’t know they were already gone.” On the same day, she also bragged, “[o]k so antifa is being blamed for breaking windows and storming congress. Um no, it was us I was with them and couldn’t be more proud.”

Here’s one of the most interesting things about yesterday’s superseding indictment.

The efforts to address Fischer are intertwined. While DOJ might be able to sustain some obstruction cases against rioters based on their own communications, and while Jack Smith might rescue this indictment with a focus on the effort to create fake elector certificates, Smith can only show that Trump almost got his Vice President assassinated if enough of the crime scene obstruction cases survive DC District review (and jury verdicts) such that Smith can show the mob was his instrument.

Jack Smith did things (describing that Trump was in his private Dining Room, not the Oval Office, noting that he sent the threatening Tweet with no assistance, labeling the rally a privately-funded speech, labeling Trump and Pence as candidates) that increase his chances of overcoming the presumption of immunity that John Roberts invented. But a number of judges (and some juries) are going to have to buy that a handful of members of the mob stormed the Capitol, and especially the Senate, with the intent of making it impossible to count vote for Joe Biden.

Here’s where things get interesting. As far as I’m aware, we have yet to see any of the superseding indictments for crime scene defendants against whom DOJ wants to sustain obstruction charges (we have seen superseding indictments against people against whom DOJ has replaced obstruction with something else, like rioting).

DOJ could have used a combined grand jury to do both, Trump and his mob. They’re each going to focus on the same issues: What staffers did to preserve the certificates as mobster came in, and the intent to prevent their counting.

They appear not to have done so; yesterday’s indictment lacks the date the grand jury was seated, which normal DC District grand juries have.

If that’s right, then Jack Smith (appears to have) seated a grand jury that could spend the next several months examining different charges, perhaps boosted by whatever precedents come out of the proceedings before Judge Chutkan and others, rather than simply sharing a grand jury with prosecutors doing much the same thing, addressing Fischer.

If Jack Smith succeeds in preserving this indictment — and that’s still a big *if* — then he will do so by making the argument that Trump, in his role as candidate, had the intention of using a mob to target the guy who played the ceremonial role of counting the vote. It would result in a collection of judicial holdings that presidential candidate Donald Trump had a mob target his Vice President in an attempt to remain President unlawfully.

Sure, John Roberts and his mob might yet try to overturn that. John Roberts might endorse the idea that presidential candidates, so long as they are the incumbent, can kill members of Congress to stay in power.

But doing so would clarify the absurdity of such a ruling.

Correction: Kyle Cheney reports that this is a grand jury seated last year. It has indicted other Jan6ers and so could do any 1512 indictments that require superseding.

Kamala’s Campaign Pushes Trump’s Impulse Control Problems

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I don’t think that even the outlets that recognize the troll are giving the Kamala Harris campaign enough credit for the jujitsu they’re engaged in with the debate. Before I explain why, though, here’s a video of Barack Obama’s skewering of Donald Trump at the White House Correspondents’ Dinner in 2011. It provides a useful reminder of the kinds of things that scar a racist narcissist like Trump.

The jujitsu on the debate started with Trump whining, two nights ago, about ABC as an excuse to get out of the debate again.

Early the next morning, Politico was the first to report an actual substantive dispute about the debate: whether the candidates’ mics would be on between questions or not. In the story, Jason Miller got an unsurprising dig suggesting that, Kamala “isn’t smart enough to repeat the messaging points her handlers want her to memorize.”

But before that in the story, this Brian Fallon quote appeared.

“We have told ABC and other networks seeking to host a possible October debate that we believe both candidates’ mics should be live throughout the full broadcast,” Brian Fallon, the Harris campaign’s senior adviser for communications, tells POLITICO. “Our understanding is that Trump’s handlers prefer the muted microphone because they don’t think their candidate can act presidential for 90 minutes on his own. We suspect Trump’s team has not even told their boss about this dispute because it would be too embarrassing to admit they don’t think he can handle himself against Vice President Harris without the benefit of a mute button.”

It was followed by this unattributed quote, digging into Trump’s self-control issues even further.

“She’s more than happy to have exchanges with him if he tries to interrupt her,” one person familiar with the negotiations tells Playbook. “And given how shook he seems by her, he’s very prone to having intemperate outbursts and … I think the campaign would want viewers to hear [that].”

Remember that unattributed quotes often come from people who are otherwise quoted in a piece. Remember, too, that Brian Fallon was Hillary’s spokesperson in 2016.

Fallon has a long history of dealing with Donald Trump.

Fallon’s suggestion that Trump has no impulse control was bound to elicit the only kind of response that horserace campaign journalists can muster: a badgering question to the candidate about a dig the opponent made. And sure enough it did. At a campaign stop, someone asked him about it, and Trump said that, “We agreed to the same rules — I don’t know. It doesn’t matter to me. I’d rather have it probably on, but the agreement was that it would be the same.”

Having elicited a question that got Trump to admit he would prefer to have a live mic, Fallon immediately declared victory.

Then, someone in charge of Trump’s Truth Social account has released content that conflicts with what Trump said publicly, when none of his handlers could prevent it.

If Trump would prefer a hot mic, then why is Trump’s curated Truth Social account complaining that Harris would prefer that too? Fallon has now created the appearance that Trump’s handlers like Jason Miller believe Trump can’t avoid some kind of meltdown during the debate.

Has Trump been using the N-word behind closed doors to refer to Kamala, or only “bitch”?

Then Kamala’s campaign released a video showing clips showing Trump questioning whether he should debate, with chicken noises in the background.

Whatever happens with the scheduled debate now, Fallon has imposed a cost on Trump’s equivocations, making it more likely he’ll have the meltdown he and his handlers are trying to stave off.

It is absolutely true that Kamala is trying to change the terms of the agreement, even as Trump gets cold feet about participating at all. But this arises, I think, out of the dynamic that has made it so hard for Trump to face Kamala in the first place. He can’t suppress his bigotry, but if he doesn’t, he’ll risk losing to a Black woman. A smart, beautiful Black woman.

There’s a Beltway story that that moment in 2011, when the first Black president used Donald Trump’s racist birther campaign to humiliate the reality TV star in front of the entire press corps, was the moment Trump decided he needed to be President. Whether or not that’s true, it’s fairly clear that kind of public humiliation by a Black person triggers Trump in a way other things might not. Trump’s narcissism requires him to maintain the appearance of superiority over everyone else; his racism makes it even more important that that perceived superiority extends to Black people.

And even if the WHCP did convince Trump to run, after considering it, he didn’t run in 2012, when he would have faced Obama. Donald Trump chose not to risk losing to Obama.

Now, because of a decision Joe Biden made, Donald Trump has lost the ability to choose whether he wants to face someone like Kamala Harris. And he’s stuck: The thing his MAGAts like about him is his spontaneous riffs, many of which rely on the humiliation of others. But if he calls the Vice President the N-word or bitch publicly, it’ll further sink him in the polls.

At least from the moment that Kamala started to put on campaign events that Trump would love to pull off, the campaign has been damaging Trump’s ego. Undoubtedly Michelle and Barack Obama (among others) made that worse at the DNC. And all that makes some outburst that could doom his campaign more likely.

Be Careful What Trump’s Lawyers Wish For, Superseding Indictment Edition

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On Friday, first Bloomberg (Yahoo version), then NYT reported that Jack Smith “has decided against seeking a major hearing” to address which of the allegations charged against Donald Trump were official versus unofficial acts. Here’s Bloomberg:

Special Counsel Jack Smith has decided against seeking a major hearing to present evidence in the election-interference case against Donald Trump before voters go to the polls Nov. 5, according to people familiar with the matter.

The move means that it’s unlikely a so-called mini-trial, which would include evidence and testimony from possible blockbuster witnesses like former Vice President Mike Pence, would take place before the presidential election.

Such a hearing would have been the best chance for voters to review evidence about Trump’s efforts to overturn the 2020 election result as he campaigns to regain the White House.

The decision is a win for Trump and his lawyers, who have fought efforts to reveal the substance of allegations against the former president. If Trump wins the election, the case would collapse as the Justice Department has a policy against prosecuting sitting presidents. Trump could also order the department to throw it out.

Instead, Smith and his team are carefully revising the case against Trump, according to the people familiar, who asked not to be named discussing a confidential matter. [my emphasis]

The emphasis here was on a supposed “win” for Trump’s lawyers, though they haven’t actually done anything to get that win. They haven’t filed a brief, they haven’t made any formal requests. This is a “win” that they did nothing — at least, nothing since SCOTUS rewrote the Constitution for Trump — to earn. Though the piece is right: If Trump wins the election, it seems impossible that this prosecution will lead anywhere, and Smith’s reported decision not to ask to explain the charges in more detail makes it less likely that such a mini-trial could have a bearing on whether Trump does win or not. (While Bloomberg states that “Trump’s lawyers didn’t immediately respond to a request for comment,” that description doesn’t rule out that this story was sourced to someone close to Trump, and the story does cite Trump’s spox, who seems to have just ranted about witch hunts.)

The NYT provides a better sense of whence the hopes for a mini-trial before the election came — from outside commentators (probably including me), not from anything Smith had officially said — which is important to making sense of this development.

Still, the ruling left open the possibility that Mr. Smith’s prosecutors could use a public hearing to air some of the evidence they had collected against the former president before Election Day. Several legal experts and commentators seized on the idea, saying that a hearing like that would almost resemble the trial itself — albeit without the finality of a jury verdict.

And yet such a proceeding was always going to be fraught with complications — not least if it ended up being held in the homestretch of an election in which Mr. Trump is seeking to return to the White House.

Neither of these stories mentions the last official thing we did hear from Jack Smith: that his team needed an extra three weeks, from August 9 to August 30, to consult with other DOJ components, as required by Special Counsel regulations.

The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024), including through consultation with other Department of Justice components. . See 28 C.F.R. § 600.7(a) (“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” including “consult[ing] with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department . . . .”). Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.

So two weeks before these stories, Jack Smith said, we need more time to talk to other people at DOJ to decide our “position on the most appropriate schedule … to brief issues,” though, as I noted here, Special Counsel regulations would not technically require consultation about the timing of hearings or briefs regarding the case in its current posture, especially given Jack Smith’s past representations that DOJ guidelines on elections would not have prohibited holding an actual trial in the pre-election period. And then, in the two weeks since, “people familiar with the matter” have decided, heard, or learned that the most appropriate schedule does not include a mini-trial, which is not something that Smith had ever publicly considered in the first place.

And neither of these stories fully address that, in most circumstances, this would not be Smith’s decision to make. Bloomberg says, “Chutkan could overrule Smith and order a major hearing prior to the election.” NYT describes that, “Judge Chutkan could in theory still order such a hearing to be held.” NYT does walk through the range of alternatives to do what SCOTUS ordered, that is, to sort through which parts of the indictment are official acts and which are not. But, in most circumstances, it was never Smith’s position to demand a public hearing, and nothing he ever said indicated he intended to do so. The goal of a mini-trial, as NYT reported, came from outside commentators.

There is one circumstance, however, where Judge Tanya Chutkan would not have a chance to weigh in. And it is one circumstance that is alluded to by both of these pieces, without addressing its potential implications. NYT states that prosecutors might seek what it assumes would be a pared-down indictment.

The prosecutors could also seek to bring a new, pared-down indictment against Mr. Trump focusing on charges they believed arose from acts undertaken in his private role as a candidate for office, not in his official role as president.

Bloomberg cites (and includes in its subhead) that prosecutors “are carefully revising the case.”

You can’t change a word in that indictment — you can’t take out all references to Jeffrey Clark’s role in subverting the election, the one thing SCOTUS said has to happen — without going back to a grand jury and superseding the original indictment. But even just doing that would put Jack Smith in the driver’s seat, effectively giving him the first shot at drafting what should and shouldn’t be included among unofficial acts that constitute crimes.

If Jack Smith is really doing what Bloomberg says — revising the case — then they have decided that they will supersede the indictment.

Now, as I suggested, even if you were doing nothing more than removing the Jeffrey Clark references, doing so would be smart in any case. Not only could Smith excise all the Jeffrey Clark materials, thereby giving Trump less surface area to attack the indictment, but he could tweak what is already there to address some of the other concerns raised by SCOTUS, for example, to clarify how candidate Trump’s reliance on fake elector certificates do not threaten Executive authorities. But minor tweaks, even the excision of the Jeffrey Clark stuff, would not require consultation with DOJ, and if Jack Smith were just excising the Jeffrey Clark stuff, he could have done that before DOJ’s election prohibition on indictments kicks in on roughly September 1.

So let’s talk about what would require consultation with DOJ, consultation requiring two full months from the immunity ruling, because it raises ways that Smith might supersede the indictment that would be a lot more interesting than simply excising the Clark stuff:

  • Consultation with the Solicitor General’s office regarding edge cases on official acts
  • Consultation with DC USAO on how to apply obstruction more generally
  • Approval from Merrick Garland for new types of charges against Trump on January 6 actions
  • Approval from Merrick Garland for charges pertaining to January 6 aftermath

Consultation with the Solicitor General’s office regarding edge cases on official acts: First, and least controversially, DOJ would consult with the Solicitor General’s office regarding any more difficult issues regarding official acts. Perhaps the most obvious of these — and one squarely raised in SCOTUS’ ruling — is the status of Mike Pence in conversations about certifying the electoral certificates. If Pence was acting exclusively in his role as President of the Senate, then Trump’s relationship to him would be as a candidate, and so under Blassingame, an unofficial act. But the Republicans on SCOTUS want to argue that some of these conversations were official acts, making Pence’s testimony inadmissible under their order. If DOJ is superseding an indictment to excise the things that need to be excised, DOJ would want the Solicitor General involved in such decisions not just because they’ll have to defend whatever stance Jack Smith adopts, but also so as to protect the equities of the Executive Branch, which DOJ traditionally guards jealously.

Consultation with DC USAO on how to apply obstruction more generally: More interestingly (and as I focused on here), if Jack Smith were to supersede the indictment against Trump, he would undoubtedly tweak the language on the two obstruction charges to squarely comply with the Fischer decision limiting it to evidentiary issues.

Since Smith got his extension, DOJ has started weighing in on a handful of crime scene cases where (unlike around 60 others) it thinks it can sustain obstruction charges under a theory that the defendant knew the import of the electoral certifications themselves and took steps to obstruct the actual counting of them.

Here’s what such an argument looks like in the case of Matt Loganbill:

At the time Fischer was decided, approximately 259 cases of the over 1,400 cases charged in the January 6 prosecution involved the application of §1512(c)(2). Some of the 259 cases were convictions at trial, while others were convictions through pleas. Some of those are currently pending trial, whereas other defendants have served their sentences of incarceration fully. As a result of Fischer, the government has endeavored to review cases – particularly those cases pending appeal, pending trial, or actively serving a sentence – in a timely and responsive fashion. Of those original 259 cases, the government has, as of the date of this filing, sought to forgo application of §1512(c)(2) – either post-conviction, pending appeal, or pending trial, in over 60 cases.5 The government continues to evaluate and/or litigate §1512(c)(2) in a variety of contexts. In this case, after a careful analysis of the Fischer opinion, the government contends that the defendant violated the statute and intends to proceed with the charge.

[snip]

  • On December 20, 2020, the defendant wrote to Facebook, “This would take place Jan 6 Witnesses should be 60 feet away while Pence counts the Electoral College votes . . . Pence should open all the envelopes and then stack all the EC ballots in a pile, he should then shred all the envelopes and burn the shreds.” Gov. Ex. 302.47.
  • On December 30, 2020, the defendant wrote to Facebook, “CALL SENATOR JOSH HAWLEY’S OFFICE T O D A Y AND LET HIM KNOW YOU SUPPORT HIS INTENT TO BE THE FIRST REPUBLICAN SENATOR TO CHALLENGE THE ELECTORAL VOTE ON JANUARY 6.” Gov. Ex. 302.49.
  • On January 6, 2021, at 1:20 p.m., the defendant sent a text message, “Are you watching what’s going on in the house/ elector certification.” Gov. Ex. 303.
  • On January 7, 2021, the defendant replies to a comment by another person on Facebook saying, “Why do you think we were trying every means possible to stop these idiots from stealing the presidency and destroying this nation.” Gov. Ex. 302.65

Evidence at trial showed Loganbill entered the Capitol, the location where the Electoral College ballots were located and where Congress and the Vice President were conducting the official proceeding.6 Gov Exs 101.1 and 701. Once inside, the defendant proceeded towards the Senate, where Congress would be handing objections to the Electoral College vote – attempting to obstruct Congress’ certification of the Electoral College ballots. The defendant knew where he was going. The government admitted a Facebook post by the defendant on January 7 and 8, 2021, he wrote, “They didn’t [let us in] at the chamber, we could have over run them, after 10-15 minutes of back and forth, we walked out” and “The only place [the police officers] wouldn’t give was the hallway towards the Rep. chamber.” Gov Exs 302.66 and 302.82, respectively. The “chamber” and “Rep. chamber” were where the Vice President and members of Congress would have been counting and certifying the Electoral College ballots. Gov Ex 701

[snip]

From this evidence, including the defendant’s express statement related to the destruction of the electoral ballots, the Court would be able to find, beyond a reasonable doubt, that the defendant acted to obstruct the certification of the electoral vote, and specifically, that he intended to, and attempted to, impair the integrity or availability of the votes (which are documents, records, or other things within the meaning of Fischer) under consideration by the Joint Session of Congress on January 6, 2021.

Of course, with any retrial, both parties would be permitted to introduce new evidence, or start the record over anew. Indeed, the government would likely introduce additional evidence related to the ballots and staffers attempts to remove the ballots from the chambers when the riot started

5 The government’s decision to forgo charges should not be read as a concession that the defendant’s conduct does not meet the test as articulated by Fischer. Rather, we are evaluating the facts on a case-by-case basis, including whether the defendant committed other felonies, whether the criminal penalties of other applicable crimes sufficiently serves the goals of 18 U.S.C. § 3553(a), and whether additional litigation is warranted. This process is appropriately time-consuming.

6 According to the testimony of Captain Jessica Baboulis’ testimony, “[t]he official proceeding had suspended due to the presence of rioters on Capitol Grounds and inside the Capitol. ECF No. 31 at 23. As the Court said in its verdict, “It doesn’t matter to this count if he entered the building after the official proceeding had been suspended and Pence had been evacuated.” ECF No. 40 at 5. Loganbill attempted to and did obstruct the Electoral College vote, including the counting of ballots, the presence of members of Congress, and the presence of the Vice President.

DOJ is making the effort of trying to sustain the obstruction charges for defendants who can’t be charged with one of several other felonies (obstructing the cops or rioting), but whose conduct — DOJ believes — should still be a felony. They’re going to have to do this with some members of the two militia conspiracies, the felony convictions on which are often the primary felonies (though DOJ used the obstruction of cops with them too).

It’s fairly easy to see how this effort has to harmonize with however Smith revamps the obstruction charges against Trump. And given the evidence that Smith was moving to include the Proud Boys in Trump’s case, that harmonization may be key to sustaining obstruction charges against the Proud Boys.

Approval from Merrick Garland for new types of charges against Trump on January 6 actions: In my last post, I also suggested that Jack Smith could be considering adding insurrection charges against Trump. I argued that the three opinions protecting Trump — Immunity, Fischer, and Colorado — squarely permit such a charge. Notably, the immunity ruling said that acquittal on a charge, like the insurrection charge on which Trump was impeached, does not prohibit criminal charges for the same crime. And the Colorado decision noted that insurrection remains good law. If Smith decided he wanted to do this, it would require approval from Garland. I consider it an unlikely move (not least because some of the evidence to prove it would still be inadmissible under the immunity decision). So go read my earlier post for more on this.

Approval from Merrick Garland for charges pertaining to January 6 aftermath: By design, SCOTUS has made it really hard to prove the case against Trump, because it requires Jack Smith to successfully argue that Trump’s own speech — even his Tweets!! — are unofficial acts, when SCOTUS has made them presumptively official. Smith would not face the same difficulty for his speech as a private citizen. And a significant swath of the known investigation actually pertained to things Trump did after he left office: That investigating how he used donations made in the name of election integrity to do things entirely unrelated. It’s unclear why Smith dropped that side of his investigation, but it’s something that would face fewer of the challenges created by the immunity ruling.

Similarly, Smith had already asked to use statements Trump made after the period of the charged conspiracies (which go through January 7 or January 20) to threaten those who debunked his voter fraud claims.

In apparent response [to January 6 Committee testimony], the defendant then doubled down and recommenced his attacks on the election workers in posts on Truth Social. He even zeroed in on one of the election workers, falsely writing that she was an election fraudster, a liar, and one of the “treacher[ous] . . . monsters” who stole the country, and that she would be in legal trouble.

The Government will introduce such evidence to further establish the defendant and his co-conspirators’ plan of silencing, and intent to silence, those who spoke out against the defendant’s false election fraud claims; the defendant’s knowledge that his public attacks on officials—like those on his Vice President as described in the indictment—could foreseeably lead to threats, harassment, and violence; and the defendant’s repeated choice to attack individuals with full knowledge of this effect. It also constitutes after-the-fact corroboration of the defendant’s intent, because even after it was incontrovertibly clear that the defendant’s public false claims targeting individuals caused them harassment and threats, the defendant persisted—meaning that the jury may properly infer that he intended that result. Finally, evidence of the defendant’s encouragement of violence and the consequences of his public attacks is admissible to allow the jury to consider the credibility and motives of witnesses who may be the continuing victims of the defendant’s attacks.

Smith also asked to introduce evidence of Trump ratifying the violence of and promising to pardon those who engaged in it, other statements after he left office that would not be entitled to any immunity.

Of particular note are the specific January 6 offenders whom the defendant has supported— namely, individuals convicted of some of the most serious crimes charged in relation to January 6, such as seditious conspiracy and violent assaults on police officers. During a September 17, 2023, appearance on Meet the Press, for instance, the defendant said regarding Proud Boys leader Enrique Tarrio—who was convicted of seditious conspiracy—“I want to tell you, he and other people have been treated horribly.” The defendant then criticized the kinds of lengthy sentences received only by defendants who, like Tarrio, committed the most serious crimes on January 6. Similarly, the defendant has chosen to publicly and vocally support the “January 6 Choir,” a group of defendants held at the District of Columbia jail, many of whose criminal history and/or crimes on January 6 were so violent that their pretrial release would pose a danger to the public. The defendant nonetheless has financially supported and celebrated these offenders—many of whom assaulted law enforcement on January 6—by promoting and playing their recording of the National Anthem at political rallies and calling them “hostages.”

Any crimes that focus on things Trump has done since he left office to undermine democracy would not be entitled to any immunity.

In a presser the other day, Garland pointed to the number of prosecutions DOJ has pursued for January 6, arguing that the prosecutions have “shown to everybody how seriously we take an effort to interfere with the peaceful transfer of power: The last January 6, the coming January 6, and every January 6 after that.” Charging Trump for his continued efforts to undermine democracy would be one way to do that.

I’m not sure if Smith believes he could prove that these constituted crimes. But if he does, he would need Merrick Garland’s approval to charge them.

All that said, there’s the issue of timing. Usually, when DOJ is considering superseding someone, they tell defense attorneys. So I had been wondering, given Trump’s recent rumpiness, whether DOJ had indicated they would. If last week’s stories were sourced to people close to Trump, as opposed to people in DOJ, then it would seem Smith did not do that.

Which gets to another thing Jack Smith would have to consult on: If he were to supersede, when he could do that. And while he would have one more week to roll out an indictment to avoid DOJ’s pre-election deadlines, I think in this case, Garland likely would require Smith to hold off a superseding indictment itself until after the election.

We’ll learn more on Friday. But it’s possible we’ll learn that DOJ intends to supersede the indictment after the election, meaning everything would halt until then.

Update: Tweaked what I meant by Tweets being official or unofficial speech.

The Second Amendment, as Applied

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AM-15 Machine Gun, now apparently legal to possess in Kansas

The Second Amendment as written and ratified: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The Second Amendment, as applied by US Federal Judge John W. Broomes of the Kansas District: “A well regulated Militia, being necessary to the security of a free State, t [T]he right of the people to keep and bear Arms, shall not be infringed.”

From the top of Broomes’ ruling on Wednesday tossing out a gun possession charge:

This matter is before the court on Defendant’s motion to dismiss based on Second Amendment grounds. (Doc. 26.) A response and a reply have been filed (Docs. 28, 29), and the court held a hearing to establish additional facts about the weapons charged. The motion is thus ripe for review. The court finds that the Second Amendment applies to the weapons charged  because they are “bearable arms” within the original meaning of the amendment. The court further finds that the government has failed to establish that this nation’s history of gun regulation justifies the application of 18 U.S.C. § 922(o) to Defendant. The court therefore grants the motion to dismiss.

And just what were the weapons in question that were charged?

I. Background
Defendant Tamori Morgan is charged with two counts of possessing a machinegun [sic throughout] in violation of 18 U.S.C. § 922(o). (Doc. 1.) Specifically, Defendant is charged with possessing an Anderson Manufacturing, model AM-15 .300 caliber machinegun and a machinegun conversion device.  It was established at the hearing that the conversion device is a so-called “Glock switch” which allows a Glock, model 33, .357 SIG caliber firearm to fire as an automatic weapon.

Making machine guns great again. Wonderful.

Just as the Alito-authored Dobbs spawned a host of ugly laws, regulations, and ripple effects across the country, the Thomas-authored Bruen is now doing the same. Welcome to the Federalist Society Judicial System.

Elections matter, people. Elections matter a lot.

A Manufactured Fight over Incumbency Hides Trump’s Fascism

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Thinking of Trump in terms of presidential administrations — reading this race as a fight over incumbency — is a category error that serves to hide the threat Trump poses to democracy.

Yet a slew of reviews of the DNC have adopted that rubric in an effort to declare that Kamala Harris has positioned herself as a change candidate treating Donald Trump as an incumbent.

I first saw this argument from NYT’s Shane Goldmacher. Then, in response to a Tim Murtaugh tweet complaining about Harris, Josh Marshall wrote this column, in which he opined, “there’s little doubt that [Kamala making Trump the incumbent] is an accurate description of the campaign we are in the midst of.” Then Byron York wrote this nonsense plea for Trump to define Kamala (over a month after she joined the race) in which he claimed that her campaign argued, “the bad things that have happened in the last few years are the work of Donald Trump and not the Democratic president and vice president.”

Goldmacher adopted the rubric of Kamala as a change candidate from two sources (if not from the six paragraphs where Trump’s team complained about it). First, a misrepresentation of the directionality of the chants adopted from rally-goers and the secondary of two slogans chosen by the campaign, preferring “Forward” over “Freedom.”

With chants of “we’re not going back” ringing through a convention hall and her campaign’s “A New Way Forward” slogan plastered outside, the vice president is making a bold bid to position the same Democratic Party that now holds the White House as bringing a fresh start to the country.

[snip]

Forward has been the watchword for Democrats in Chicago, as the party embraces its most future-leaning posture since Mr. Obama’s first campaign in 2008. Delegates and supporters have circulated a new poster designed by the artist Shepard Fairey, who made Mr. Obama’s famous “Hope” poster in 2008. The refreshed Harris one features the word “Forward” at the bottom.

Even if you prefer “Forward” to “Freedom” (and ignore how much more central the latter has been to Kamala’s imagery), it still doesn’t invoke presidential administrations. Rather, it contrasts reactionary policy to moderate progressivism. Political movement does not require incumbency.

From there, Goldmacher invests his misinterpretation with great significance using the same tools that most mediocre campaign punditry masquerading as journalism does: polling.

The battle over the mantle of change is especially significant at a moment when polls show a sizable majority of Americans are unhappy with the state of the nation’s affairs.

Former President Donald J. Trump had established a clear edge as the candidate who would upend the status quo when he was still facing President Biden. He was the insurgent; Mr. Biden was the incumbent. But now Ms. Harris, a 59-year-old who would make history as the first female president, has altered the dynamics of a contest that had previously pitted two men seeking to break the record of the oldest president.

[snip]

In a New York Times/Siena College poll this spring of battleground states, an overwhelming 69 percent of voters said that major changes were needed to the country’s political and economic system — or that the system needed to be torn down entirely.

The problem for Democrats was that only 24 percent of voters thought Mr. Biden would do either of those things.

But recent polls of swing states in the Sun Belt show that voters do not view Ms. Harris the same way they do Mr. Biden. While far more voters still see Mr. Trump as more likely than Ms. Harris to make major changes — 80 percent to 46 percent — they are more divided on whether he would bring the kind of change that they want.

Exactly the same share of voters — 50 percent each — said Ms. Harris would bring about the right kind of changes compared with Mr. Trump. [my emphasis]

That is, Goldmacher is interested in this for horserace reasons. The electorate is disaffected, ergo whoever can adopt the mantle of change can win the election.

Like I said: building entire stories around polling makes for facile punditry.

The claim that Kamala is running as a change candidate fails once you look at policy. Goldmacher claims that, “she is trying to differentiate herself, both stylistically and with some new economic plans.” The story he links, claiming it describes an effort to “differentiate herself” from Joe Biden in fact quotes Kamala in ¶3 describing the economic vision she presented as one belonging to a third person plural, we. “One — ours — focused on the future and the other focused on the past.” Kamala did that in a speech where she repeatedly talked about the success of the Biden Administration, we.

And, today, by virtually every measure, our economy is the strongest in the world. (Applause.)

We have created 16 million new jobs. We have made historic investments in infrastructure, in chips manufacturing, in clean energy. And new numbers this week alone show that inflation is down under 3 percent. (Applause.)

And as president of the United States, it will be my intention to build on the foundation of this progress.

This situates the movement that Goldmacher has spun, with no evidence, in terms of administrations, as a joint movement, Joe Biden and Kamala Harris, together pursuing policies focused on the future. Moreover, the story Goldmacher links admits that,

Much of Ms. Harris’s agenda represents an expansion of policies proposed by Mr. Biden in his latest presidential budget and during his re-election campaign.

This gets to one of the core things I think is leading people to get distracted about who is the incumbent. Journalists, especially those at NYT, largely ignored Joe Biden’s policy successes. They were too busy writing the twelfth Joe Biden Old story of the day to bother themselves with policy. And so simply because Kamala is new and younger and better able to pitch the very same policy — or natural extensions of that policy — all of a sudden journalists are labeling it as new, as Kamala’s effort to distance herself from Biden. Kamala is and will increasingly (especially assuming the Fed will cut interest rates next month) benefit from Biden’s successes, and the journalists who were too lazy to talk policy the first time will label it change. But that’s something that arises from journalistic laziness, not any effort by Harris to distance herself from Biden.

This is apparent even in right wing attempts to insist on continuity. When Byron York claims that Kamala is trying to distance herself, he cites a campaign video listing her accomplishments as VP.

Then came the section on Harris’s vice presidency. It claimed that she 1) capped insulin costs for older people, 2) helped replace lead pipes and provide clean water to communities, 3) helped create 16 million jobs, 4) fought gun violence, 5) “traveled the world to strengthen our national security,” 6) helped unite NATO in defense of Ukraine, and 7) “led the fight for reproductive freedom.”

Four of those things — insulin costs, gun violence, supporting NATO, and fighting for reproductive freedom — have been central in Kamala’s future policy promises; three figured prominently in her DNC speech. To a significant extent, Kamala claims she wants to continue the unfinished business of the Biden Administration.

Byron’s real complaint (as well as that of Murtaugh) is that Kamala is not capitulating to Trump’s primary digs against both Biden and her — inflation and immigration.

The two biggest items left off the list just happen to be the two biggest concerns of voters in 2024. One is Harris’s role in the disastrous Biden economic policy that helped feed inflation and made it far more difficult for millions of people to buy the basics of life, such as groceries. The other is Harris’s role in the even more disastrous Biden policy on the U.S-Mexico border, in which the administration allowed more than 7 million unvetted migrants to stay in the U.S. after crossing the border illegally.

As we saw in the North Carolina speech, when directly addressing actual inflation, Kamala would and did point to the ways that Biden has tamed it (which is what will lead to that interest rate cut next month). But on top of that, she’s promising ways to bring cost of living down, such as a child tax credit that failed under Biden but would become possible if (and only if) Democrats somehow keep their Senate majority after Ruben Gallego replaces Kyrsten Sinema.

Nor is there a discontinuity on immigration. Kamala is addressing immigration precisely the same way Biden did: by talking about how Trump tanked a bipartisan deal to fix it.

And let me be clear — and let me be clear, after decades in law enforcement, I know the importance of safety and security, especially at our border. Last year, Joe and I brought together Democrats and conservative Republicans to write the strongest border bill in decades. The border patrol endorsed it. But Donald Trump believes a border deal would hurt his campaign, so he ordered his allies in Congress to kill the deal.

Well, I refuse to play politics with our security, and here is my pledge to you. As president, I will bring back the bipartisan border security bill that he killed, and I will sign it into law.

You may not like that dodge. This effort to flip Trump’s favorite campaign issue back onto him may have limited success. But that’s not change. It’s more continuity.

And it goes to a point that Marshall makes as he puzzles through why there may be a sense that Trump is the incumbent. Trump is still acting like he’s president.

[T]here’s another paradoxical way that Trump himself laid the groundwork for this campaign, and made it possible for Harris to turn his own political heft against him. The centerpiece of Trump’s post-presidency is the wicked conceit that he never stopped being president at all.

[snip]

He still calls himself president. He demands and universally receives that billing from his followers.

He demands to be treated as president. More importantly, his demand for and policing of absolute loyalty is precisely how he was able to order the GOP to tank the immigration bill.

Immigration is not the only legislation that Trump tanked — a renewed effort to pass the child tax credit is another.

But the most lasting testament to Trump’s power as president, not mentioned by any of these men, may be the most important electorally: The decisions his hand-picked judges dictated to the American people. That starts with Dobbs, a policy on which both Trump and Harris believe he should get credit. Trump wasn’t president in 2022, but his judges were still dictating policy to half the country.

And it’s not just SCOTUS. By November I hope Kamala’s campaign points to all the other policies — student loan relief, a ban on non-competes, environmental regulations, and others — that Trump’s judges have vetoed to deprive Joe Biden of policy wins. Trump remade the way judges judge, blasting Stare decisis, and allowing a small number of judges in Texas and the Fifth Circuit to dictate policy for the entire country.

Which is one of the reasons I care about this: because so much of Trump’s lasting influence is about his lasting attack on rule of law. The insistence that this is about incumbency obscures the real threat Trump poses to democracy, whether or not he’s president.

Take this crazy Goldmacher paragraph.

For nearly a decade, Mr. Trump’s bulldozing approach has been premised on the idea that the nation was staring into an abyss and only urgent upheaval could save the country. The question for Ms. Harris is whether she can frame Democrats keeping power in 2024 as a break from that dark and divisive era.

It is true that Trump has been claiming that “only urgent upheaval could save the country.” But that was a fascist trope. It wasn’t true and even if it were, none of the policies Trump pushed would do anything but enrich people like him. Journalism should do more than observe that he made those false claims; it should explain why they’re false.

In the very next sentence, though, Goldmacher asserts that the challenge for Kamala (again adopting the dumb poll-driven assumption that she’ll only win if she is the change candidate) is by offering, “a break from that dark and divisive era.” What “era”? By reference, Goldmacher must mean that the near-decade in which Trump has told fascist lies is the “dark and divisive era” (though Trump’s racist birtherism started long before that). But it’s not an era. It’s a fascist belief, a means of exercising power, a means of dehumanizing your political opponents, one that had huge influence, but one that with the exception of the political violence it fostered, only held sway over a minority of the country (albeit a large one).

Look at how Goldmacher obscures this dynamic in the polls he cites. Of the 80% who responded that Trump would “make major changes,” 32% actually answered that he would, “tear down the system completely.” That’s fairly consistent with the 36% of people polled who believe that the changes Trump would make would be, “Very bad for the country.” (Those numbers are, respectively, 23% and 30% for Harris.) This is not a question about change. At worst, it’s a question about polarization, those who buy Trump’s fear-mongering against those who value democracy. For the 30-plus percent who believe Trump would destroy the country, it may well be a question about fascism. And in a piece where Goldmacher calls a man who launched an “insurrection” an “insurgent,” ignoring Trump’s assault on democracy while discussing those numbers is malpractice.

Trump’s assault on democracy also pervades the issues that Marshall points to in his attempt to understand this dynamic.

Marshall’s best example of Trump pretending that he remains President — that he continues to meet with heads of state — obscures the likelihood that when Viktor Orbán and Bibi Netanyahu meet with Trump, it served a multi-national effort to replace American democracy with authoritarianism. Trump is not meeting with Orbán to discuss possible policy towards the EU, he’s meeting with him as a key ally in a Christian nationalist project, one intimately tied to Putin, one committed to ending the Western liberal order.

Marshall situates Trump’s bid for revenge — which he claims is Trump’s entire platform — as a continued obsession about his ouster.

Trump’s entire platform is retribution — retribution for his 2020 defeat, which he lacks the character to recognize, and retribution for what he considers his mistreatment during his term as president.

[snip]

[A]t the most basic level it’s about the past, relitigating, being made about, wanting to fix things that happened in 2017, 2018, etc.

But even there, I think it’s a misstatement. Trump does pitch this as “revenge.” But the word is designed to obscure the degree to which even before his 2016 election, Trump led his mob to expect that he would use government to criminalize any opposition. Lock her up was the goal, not just beating Hillary at the polls. The word revenge is Trump’s way of legitimizing that assault on rule of law: it covers up how he criminalized not just Hillary Clinton and Hunter Biden but also those who deigned to investigate him. It also undermines — is intended to undermine — the legitimacy of all his criminal prosecutions, sowing doubt that he really is just a fraud conning his followers. Using the word “revenge” is in fact a false claim that he didn’t start this, when even his first impeachment was an effort to do just that.

Of course, revenge is not Trump’s entire platform. There are other key ingredients, like tax cuts for people like him. But the other foundational policy in his platform is a draconian approach to immigration, one of two reasons why Murtaugh is so desperate to claim that Harris is dodging her role in the Biden Administration.

If Trump were to win, a fascist definition of citizenship (including an assault on birthright citizenship) would serve as the excuse to “deport” (or at least to round up and detain) broader swaths of the population. More importantly, the constant efforts to inflame voters about immigration — particularly crimes attributed to “illegals” — lays the groundwork, is intended to lay the groundwork, not just the kind of fearmongering politics that failed in the past, but for the kind of Internet-mobilized right wing thuggery first tested in Ireland (including, but not limited to, the Dublin riot) and then further perfected after the UK’s Southport stabbing, with the unabashed involvement of one of JD Vance’s biggest backers, Elon Musk.

This effort from Trump’s team to falsely claim that Kamala is trying to distance herself from the Biden Administration is only partly about policy. It is, just as importantly, about laying the groundwork to stoke political violence when electoral politics fails.

Look, I get it. There are reasons why it’s easy to interpret this moment as a fight over incumbency.

  • The nearly unprecedented situation, which original pitted two former presidents against each other
  • Kamala’s continuation of the successful Joe Biden policies the political press ignored because they were too busy writing their 137th Joe Biden old story
  • The ongoing damage Trump has done since he left the presidency, without the incumbency of the office, both with court decisions like Dobbs and with successful efforts to undermine political compromise
  • Kamala’s repackaged response to Trump’s fascist threat as a way forward

The last one is the one people aren’t seeing. But it’s right there in her speech, as it was in the speeches of all of the Republicans who endorsed Kamala at the convention. Kamala’s Freedom agenda — even her Forward agenda — is in significant part an attempt to protect democracy and rule of law.

And with this election, and — and with this election, our nation — our nation, with this election, has a precious, fleeting opportunity to move past the bitterness, cynicism and divisive battles of the past, a chance to chart a new way forward. Not as members of any one party or faction, but as Americans.

[snip]

In many ways, Donald Trump is an unserious man. But the consequences — but the consequences of putting Donald Trump back in the White House are extremely serious.

Consider — consider not only the chaos and calamity when he was in office, but also the gravity of what has happened since he lost the last election. Donald Trump tried to throw away your votes. When he failed, he sent an armed mob to the U.S. Capitol, where they assaulted law enforcement officers. When politicians in his own party begged him to call off the mob and send help, he did the opposite — he fanned the flames. And now, for an entirely different set of crimes, he was found guilty of fraud by a jury of everyday Americans, and separately — and separately found liable for committing sexual abuse. And consider, consider what he intends to do if we give him power again. Consider his explicit intent to set free violent extremists who assaulted those law enforcement officers at the Capitol.

His explicit intent to jail journalists, political opponents and anyone he sees as the enemy. His explicit intent to deploy our active duty military against our own citizens. Consider, consider the power he will have, especially after the U.S. Supreme Court just ruled that he would be immune from criminal prosecution.

Kamala is running on democracy just as much as Biden did in 2020. It just looks different, because she has more successfully wrapped it in a bipartisan flag. Even there, there’s real continuity (don’t forget that one of Biden’s most important speeches about democracy in 2022, one that had a real impact on the election, was at Independence Hall).

Largely enabled by Trump’s ongoing effect — again, especially on Choice — Kamala has just found a way to make democracy matter more personally, more viscerally.

Kamala is not eschewing the incumbency she has Vice President. On the contrary, she is running on a continuation and expansion of Joe Biden’s successful policies (even if journalists are missing that). And she is running, just as Biden did, on defeating both Trump’s electoral bid but also the threat he poses to democracy itself.

Update: Swapped the featured image to show that Murtaugh continues to bullshit about Kamala distancing herself from the White House.

Update: Corrected Southport/Southgate.

To Become Leader of the Free(dom) World

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At the start of the week, WSJ began a profile of Kamala Harris’ tenure as Vice President with a review of concerns among her staffers about whether and, if so, how to properly return a salute.

In her first months as vice president, Kamala Harris’s staff faced a dilemma: When a military officer saluted her as she boarded Air Force Two, should she salute back?

Harris’s predecessors—including Joe Biden when he was vice president—routinely saluted back. But Nancy McEldowney, then her national security adviser, explained that military protocol didn’t require her to do so given that Harris wasn’t commander in chief and not in the military chain of command. Doing so could make Harris look like she was trying to inflate her role, former administration officials said.

Boarding one of her first flights on Air Force Two, Harris skipped the salute. Conservative commentators seized on the moment and accused her of disrespecting the military. Soon after, aides were told that Harris would salute going forward. An aide wrote up a memo on proper saluting protocol—including pictures of previous presidents who had gotten it wrong—and the vice president even practiced the gesture in private, people familiar with the matter said.

I thought about it as I was trying to process how and why we got Leon Panetta when we all thought we were getting Beyoncé.

I still expect we’ll get Beyoncé, one day.

I think it would have worked great (and absent her appearance, think organizers should have moved Pink to closer to Kamala’s speech). But the expectation that Beyoncé would show arose, first, from the earned arrogance that popular Democratic politicians can rely on the support of stars and most Republicans cannot. That expectation also arose, I think, from a conceit that we were getting a show for our benefit.

Expectations sky-rocketed after Lil Jon jumped out of the stands and led the entire stadium in a joyous rap. But that was during the Roll Call vote, a moment when delegates, committed Democrats, affirmed near-unanimous support for Kamala Harris.

But the hour in which the Vice President spoke was not, primarily, for our benefit.

Go back to what I said yesterday: This election will be won or lost on how much Kamala Harris can expand the reservoir of voters who might otherwise stay home. Returning to traditional Democratic levels of support among Black and Latino voters, inspiring a new generation of voters, further exciting the kind of people who want to see Beyoncé … that can get you to a two or three point lead in swing states that might be enough in a normal year for a white male candidate.

But for a Black person, a candidate aspiring to the first woman president, someone running against a desperate felon who has his own army of terrorists, it’s not enough.

Kamala Harris needs bigger margins to survive the shit Donny will throw at her. She needs to win enough states to squeak through if Trump manages to hang up two of them with some kind of frivolous legal challenge.

This hour, in which (with all due respect to my Governor, Big Gretch) Adam Kinzinger gave the second best speech, after Kamala’s, was for the sea of moderate voters with certain expectations about a Commander in Chief.

Kamala addressed this broader audience, fairly early in her speech, making a promise that defined much of what came later.

And let me say, I know there are people of various political views watching tonight. And I want you to know, I promise to be a president for all Americans. You can always trust me to put country above party and self. To hold sacred America’s fundamental principles, from the rule of law, to free and fair elections, to the peaceful transfer of power.

I will be a president who unites us around our highest aspirations. A president who leads and listens; who is realistic, practical and has common sense; and always fights for the American people. From the courthouse to the White House, that has been my life’s work.

She addressed principle.

The Commander of Chief challenge is one that faces every candidate who hasn’t spent a career, as Joe Biden has, accruing a track record on national security issues. Even former Secretary of State Hillary Clinton, a lifelong hawk, struggled with this issue because of her gender. Steve Bannon described that challenge in FBI interviews focused on how they approached the 2016 debates, how the one thing he needed to pull off was allowing people to imagine Donald Trump could be Commander in Chief. This convention was partially staged by David Plouffe, who sent Barack Obama to give a controversial speech in Berlin to acquire that kind of gravitas.

Kamala needed — or perhaps Plouffe believed she needed — someone to tell a story that afforded her the comparative seriousness of recent Democratic Administrations. In other circumstances, Joe Biden would have been the one to tell that story, to describe Kamala’s role in getting Evan Gerskovich home, to describe Kamala’s mission to prepare Volodymyr Zelensky in advance of Russia’s invasion. Other possible candidates are equally impossible. Tony Blinken, who might be permitted a political speech, has been tainted by Bibi’s warmongering. CIA Director William Burns and Director of National Intelligence Avril Haines, both true heroes of any Biden foreign policy successes, cannot play such a partisan role.

So Leon Panetta it was, according to Vice President Harris the glory of that goddamned raid on Osama bin Laden once again.

To be clear, given what she’s up against, I think it was a missed opportunity.

The Commander in Chief test is also wrapped up in America’s rusty sense of its own exceptionalism. At this moment, the threat to any claim of exceptionalism comes from within as much as outside.

Kamala is fighting America’s aspiring dictator, not just dictators overseas. The national security part of her speech defined herself in contrast to Trump’s abdication of America’s role in the world.

As vice president, I have confronted threats to our security, negotiated with foreign leaders, strengthened our alliances and engaged with our brave troops overseas. As commander in chief, I will ensure America always has the strongest, most lethal fighting force in the world. And I will fulfill our sacred obligation to care for our troops and their families, and I will always honor and never disparage their service and their sacrifice.

I will make sure that we lead the world into the future on space and artificial intelligence. That America, not China, wins the competition for the 21st century and that we strengthen, not abdicate, our global leadership. Trump, on the other hand, threatened to abandon NATO. He encouraged Putin to invade our allies. Said Russia could “do whatever the hell they want.”

[snip]

I will never hesitate to take whatever action is necessary to defend our forces and our interests against Iran and Iran-backed terrorists. I will not cozy up to tyrants and dictators like Kim Jong-un, who are rooting for Trump. Who are rooting for Trump.

Because, you know, they know — they know he is easy to manipulate with flattery and favors. They know Trump won’t hold autocrats accountable because he wants to be an autocrat himself.

And as president, I will never waver in defense of America’s security and ideals, because in the enduring struggle between democracy and tyranny, I know where I stand and I know where the United States belongs.

In many ways, these parts of Kamala’s speech — the ones addressed to those measuring up a possible Commander in Chief — echoed Kinzinger’s earlier speech.

His fundamental weakness has coursed through my party like an illness, sapping our strength, softening our spine, whipping us into a fever that has untethered us from our values.

Our democracy was frayed by the events of January 6th, as Donald Trump’s deceit and dishonor led to a siege on the United States Capitol. That day, I stood witness to a profound sorrow: the desecration of our sacred tradition of peaceful transition of power, tarnished by a man too fragile, too vain, and too weak to accept defeat.

How can a party claim to be patriotic if it idolizes a man who tried to overthrow a free and fair election? How can a party claim to stand for liberty if it sees a fight for freedom in Ukraine—an attack pitting tyranny against democracy, a challenge to everything our nation claims to be—and it retreats, it equivocates, it nominates a man who is weirdly obsessed with Putin and his running mate who said, “I don’t care what happens in Ukraine”? Yet he wants to be Vice President, yeah. How can a party claim to be conservative when it tarnishes the gifts that our forebearers fought for—men like my grandfather, who served in World War II, who believed in a cause bigger than himself, and he risked his life for it, behind enemy lines? To preserve American democracy, his generation found the courage to face down armies. Listen, all we’re asked to do is to summon the courage to stand up to one weak man.

[snip]

[D]emocracy knows no party. It’s a living, breathing ideal that defines us as a nation. It’s the bedrock that separates us from tyranny. And when that foundation is fractured, we must all stand together united to strengthen it.

Democrat and Republican agree on the challenge.

But if Kamala Harris succeeds in this race, American is long overdue for a reckoning on what these values mean. We got into this mess — Donald Trump’s demagoguery resonated with far too many people — not just because the financial crisis left so many behind, not just because of the racism bred into America from the moment of its founding, but because a War on Terror that left many damaged also poisoned much of the claim to American exceptionalism, leaving others devoid of their source of self-worth.

Kamala Harris has a story to tell about diplomacy and cooperation. One of the most interesting anecdotes came from someone who claimed that, while serving as California’s Attorney General, Kamala presided over a new kind of cooperation in law enforcement that has become the norm; in reality, she likely just happened to be the top cop for a country-sized state as the techniques of the War on Terror were adopted, with a big boost from Silicon Valley, to other kinds of security challenges.

If she becomes Commander in Chief, Kamala Harris would take over the helm not just of an oversized military, but also the manufacturing base that has armed Ukraine to defend itself and an information-sharing machine that provided European allies with a way to combat Russia’s sabotage.

These are still awesome, potentially monstrous, tools. That dragnet, in Trump’s hands, could quickly become the instrument of totalitarianism.

But Kamala Harris’ experience wielding them and her ties to their base in California may provide the roots of a different model.

America’s past mistakes — including its failures in Gaza — have tarnished the claims to principle. Decades of increasing reliance on coercion rather than cooperation created the opportunity for someone like Trump, who peddles a false claim that coercion makes you strong.

Kamala offered a clear sense of how she defines freedom within America. But if she’s promising to move forward from the danger of Donald Trump, she would do well to consider what it means to be Leader of the Freedom World.

This image, which Miles Curland created in response to the Shepard Fairey one, is available under Creative Common license.

DNC Convention 2024: Day 4 — The Fight for the Future Begins

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[NB: check the byline, thanks. /~Rayne]

It’s the final day of Democratic National Committee Convention 2024. Kamala Harris is officially the Democratic Party’s presidential nominee and will close the convention with her keynote acceptance speech.

With the end of the convention, the fight for democracy begins in earnest. There are 75 days left until Election Day.

Speaking of which, are you registered? Have you checked your registration? Have you helped someone get registered which may include getting identification? Do something!

DAY 4 CONVENTION SCHEDULE
Here’s today’s convention schedule (times shown are Central Time):

7 a.m.-9:30 a.m.: Delegation breakfasts
9 a.m.-10a.m.: Morning press briefing
9:30 a.m.-11:30 a.m.: Women’s Caucus meeting
12 p.m.-1:30 p.m.: Disability Caucus meeting
12 p.m.-1:30 p.m.: Youth Council meeting
12 p.m.-1:30 p.m.: Rural Council meeting
1:45 p.m.-3:15 p.m.: Veterans & Military Families Council meeting
1:45 p.m.-3:15 p.m.: Poverty Council meeting
1:45 p.m.-3:15 p.m.: Interfaith Council meeting
6 p.m.-10 p.m.: Main programming

MAIN PROGRAMMING
Main programming has already begun as this post publishes at 7:30 PM ET/6:30 PM CT

Tonight’s schedule (times shown are Central Time):

5:30 PM

Call to Order
• Minyon Moore, Chair of the 2024 Democratic National Convention Committee

Gavel In
• Rep. Veronica Escobar (TX-16)

Invocation
• Everett Kelly, National President of the American Federation of Government Employees
• Imam Muhammad Abdul-Aleem, Masjidullah Mosque, West Oak Lane, PA

Presentation of Colors
• Illinois State Police Honor Guard

Pledge of Allegiance
• Luna Maring, 6th Grader from Oakland, California

Welcome Remarks
• Rep. Veronica Escobar (TX-16)

Joint Remarks
• Becky Pringle, President of the National Education Association
• Randi Weingarten, President of the American Federation of Teachers

Remarks
• Sen. Alex Padilla, California

6:00 PM

Remarks
• Marcia L. Fudge, Former U.S. Secretary of Housing and Urban Development
• Rep. Ted W. Lieu (CA-36)
• Sen. Tammy Baldwin, Wisconsin
• Rep. Katherine Clark (MA-05), U.S. House of Representatives Democratic Whip
• Rep. Joe Neguse (CO-02) U.S. House of Representatives Assistant Democratic Leader
• Mayor Leonardo Williams, Durham, North Carolina
• Rep. Raja Krishnamoorthi (IL-08)
• Sen. Bob Casey, Pennsylvania
• Sen. Elizabeth Warren, Massachusetts

Remarks: “Project 2025—Chapter Four: Making America Weaker and Less Secure”
• Rep. Jason Crow (CO-06)

Remarks
• Rep. Elissa Slotkin (MI-07), U.S. Senate candidate
• Rep. Pat Ryan (NY-18)
• Reverend Al Sharpton, Civil rights leader

Joint Remarks from representatives of “the Central Park Five”
• Dr. Yusef Salaam, Member of the New York City Council
• Korey Wise, Activist
• Raymond Santana, Activist
• Kevin Richardson, Activist

7:00 PM

Joint Remarks
• Amy Resner, Former prosecutor and friend of Vice President Harris
• Karrie Delaney, Director of Federal Affairs at the Rape, Abuse & Incest National Network
• Lisa Madigan, Former Attorney General of Illinois
• Marc H. Morial, President of the National Urban League
• Nathan Hornes, Former student at Corinthian Colleges
• Tristan Snell, Former New York State Assistant Attorney General

Remarks
• Gov. Maura Healey, Massachusetts
• Courtney Baldwin, Youth organizer and human trafficking survivor
• Deb Haaland, Secretary of the Interior
• John Russell, Content creator
• Rep. Maxwell Alejandro Frost, Florida
• Rep. Colin Allred (TX-32)

Joint Remarks on “A New American Chapter”
• Anya Cook, Florida
• Craig Sicknick, New Jersey
• Gail DeVore, Colorado
• Juanny Romero, Nevada
• Eric, Christian, and Carter Fitts, North Carolina

8:00 PM

National Anthem
The Chicks

Host Introduction
• Kerry Washington

Joint Remarks
• Meena Harris
• Ella Emhoff
• Helena Hudlin

Remarks
• D.L. Hughley
• Sheriff Chris Swanson, Genesee County, Michigan

A Conversation on Gun Violence
• Rep. Lucy McBath, Georgia

Joined by
• Abbey Clements of Newton, Connecticut
• Kim Rubio of Uvalde, Texas
• Melody McFadden of Charleston, South Carolina
• Edgar Vilchez of Chicago, Illinois.

Remarks
• Gabrielle Giffords, Former Member of the U.S. House of Representatives, Arizona

Performance
P!NK

Remarks
• Sen. Mark Kelly, Arizona
• Leon E. Panetta, Former United States Secretary of Defense
• Rep. Ruben Gallego (AZ-03), U.S. Senate candidate
• Gov. Gretchen Whitmer, Michigan

9:00 PM

Remarks
• Eva Longoria, American actress and film producer
• Adam Kinzinger, Former Member of the U.S. House of Representatives, Illinois
• Maya Harris
• Gov. Roy Cooper, North Carolina

Remarks
• Kamala Harris, Vice President of the United States, Democratic Party presidential nominee and keynote speaker

Benediction
• Rabbi Lauren Holtzblatt, Adas Israel Congregation (Washington DC)
• Rev. Amos Brown, pastor, Third Baptist Church (San Franciso CA)

Closing remarks and gavel out
• Minyon Moore, Chair of the 2024 Democratic National Convention Committee

Note: this list of speakers and performances is as published by DNC this evening after 6:00 PM ET. It doesn’t match the list Nonilex has in a thread on Mastodon; there may have been/will be changes to the lineup.

HOW TO WATCH
See Monday’s Day 1 post for the best channels on which to catch the majority of this evening’s programming.

DNC at United Center-Chicago will stream a live feed from its own website between 7:00 PM to 11:00 PM ET (6:00 PM to 10:00 PM CT) Tuesday through Thursday.

https://demconvention.com/

USA Today will also live stream Tuesday through Thursday.

https://www.youtube.com/@USATODAY/streams – main page

https://www.youtube.com/watch?v=4d5-wtw4yuQ – tonight’s feed

The DNC’s convention feeds are:

https://www.youtube.com/@DemConvention – main page

https://www.youtube.com/watch?v=nKNW_KHYrbY – tonight’s feed