Fridays with Nicole Sandler
Listen on Spotify (transcripts available)
Listen on Apple (transcripts available)
Listen on Spotify (transcripts available)
Listen on Apple (transcripts available)
As I laid out here, I’ve been going through the transcripts from Jim Jordan’s search to find people who politicized intelligence, like his investigation showed John Ratcliffe to have done.
And in addition to the way Jordan exposed new information about Ratcliffe politicizing intelligence, Jordan also helpfully elicited an intelligence analysis of Trump’s dictatorial personality.
A Republican staffer was asking Mike Morell why he sent an email thanking those who signed the 50 spook letter, in which Morell said the 2020 election was the most important since the Civil War. And then, violating the rule that you never ask a question to which you don’t know the answer, the staffer then asked why Morell said that.
Q In an email you sent to signatories thanking them for signing on, you described this as, quote, the most important election since 1860 and 1864 when the very existence of the country was on the ballot.
[snip]
Q Why did you believe that this was the most important election since 1860 and 1864?
So Morell answered, drawing on his training analyzing the personality traits of world leaders.
I have to tell you that, you know, spending 33 years at CIA and watching literally hundreds of world leaders during that time, President Trump’s personality traits deeply concerned me, what I believed to be deep narcissism, what I believed to be deep paranoia, what I believe to be a type of sadism where you — not sexually, of course, but a type of sadism where you, you know, are happy when your opponents have been injured in some way — I’m talking politically — that those were all traits that I saw in foreign leaders who did significant damage to their country and significant damage to the democracies of their country. I’m thinking — you know, I’m thinking of Mugabe in Zimbabwe. I’m thinking of Chavez in Venezuela. I’m thinking of Putin in Russia. So I was deeply concerned about the potential impact of President Trump on our democracy.
And, you know, my fear, in my view, was borne out by his failure to act on January 6, 2021. So that’s what I meant when I wrote that. That’s what I was thinking.
Q The public statement —
Chairman Jordan. You couldn’t have been thinking about January 6, 2021, because —
Mr. Morell. No. I wasn’t thinking about January 6th. I was thinking about everything I said up to that point, sir. You’re correct.
To Jordan’s credit, he caught Morell seeing, in January 6, confirmation of his analysis.
Which it was.
Brazilian authorities will charge Jair Bolsonaro with money laundering for keeping $3.2 million in diamonds given to him and his spouse by the Saudi government.
Brazilian federal police on Thursday formally accused former President Jair Bolsonaro of embezzlement for allegedly misappropriating jewelry he received while head of state, including luxury items given by the Saudi Arabian government, two police sources said.
This is the second time police have formally accused Bolsonaro of a crime. He was charged in March with forging his COVID-19 vaccine records.
The jewelry, some of it made by Chopard of Switzerland, was valued at $3.2 million and included a diamond necklace, ring, watch and earrings given to Bolsonaro and former first lady Michelle Bolsonaro by the Saudi government.
Some of the jewelry was seized by customs officials at Sao Paulo’s international airport in October 2021 when it was found in the backpack of a government aide returning from Riyadh.
The police accused Bolsonaro of money laundering, criminal association and embezzlement, according to one of the sources, who spoke to Reuters on the condition of anonymity.
Meanwhile, buried on page A7 of the NYT on Monday, behind mountains of stories about Old Man Joe Biden, NYT’s Eric Lipton reported that Trump Organization unveiled in new project in Saudi Arabia.
The Trump Organization has signed a new deal with a Saudi real estate company to build a residential high-rise tower in the city of Jeddah, extending the family’s close ties with the kingdom.
Saudi Arabia has become one of the few reliable sources of growth for the Trump family’s business operations, as new real estate deals in the United States have slowed or stopped since the Jan. 6, 2021, assault on the Capitol and since former President Donald J. Trump left the White House.
This new deal is like other international projects the Trump family has signed over the past decade. It offers the family’s name and brand to a well-financed developer that will build the project and sell luxury resident units, it hopes at a premium, based on the marketability of the former president’s perceived star power. Other projects include a resort complex in Oman and Saudi-backed golf tournaments at Trump courses in recent years.
This seems to be structured like the Moscow Trump Tower deal would have been: basically, free money to the Trump Organization for the use of a coup-plotter’s brand.
The Saudis allegedly supported one coup-plotter with piddling gifts of mere millions. Meanwhile, it has been funneling far more to the Trump family, all in plain sight (albeit buried beneath a bunch of breathless coverage of Joe Biden’s age).
Isn’t it time voters learned whether the Republican candidate for President is a mere house boy for the Saudi royal family?
On this Fourth of July, I think of the Fifth of July in 1852. On that day, Frederick Douglass spoke in Rochester, New York, about the national celebration that took place the day before. He opened his remarks by looking backwards:
This, for the purpose of this celebration, is the 4th of July. It is the birthday of your National Independence, and of your political freedom. This, to you, is what the Passover was to the emancipated people of God. It carries your minds back to the day, and to the act of your great deliverance; and to the signs, and to the wonders, associated with that act that day.
He described that day long past, that act of great deliverance, and noted that things had changed in some serious ways:
To say now that America was right, and England wrong, is exceedingly easy. Everybody can say it; the dastard, not less than the noble brave, can flippantly discant on the tyranny of England towards the American Colonies. It is fashionable to do so; but there was a time when, to pronounce against England, and in favor of the cause of the colonies, tried men’s souls. They who did so were accounted in their day, plotters of mischief, agitators and rebels, dangerous men. To side with the right, against the wrong, with the weak against the strong, and with the oppressed against the oppressor! here lies the merit, and the one which, of all others, seems unfashionable in our day. The cause of liberty may be stabbed by the men who glory in the deeds of your fathers.
Oops. Words became easy by 1852, as they were twisted by those seeking to be oppressors themselves. To his hearers, this line had to have sounded like thunder in the distance, putting them on notice that a storm was brewing in Douglass’ words. But Douglass took his time getting to the storm, continuing to tell the stories of the days of the founders and their efforts to throw off the British yoke. Having taken his time, however, Douglass brought the storm.
The causes which led to the separation of the colonies from the British crown have never lacked for a tongue. They have all been taught in your common schools, narrated at your firesides, unfolded from your pulpits, and thundered from your legislative halls, and are as familiar to you as household words. They form the staple of your national poetry and eloquence. . . .
I leave, therefore, the great deeds of your fathers to other gentlemen whose claim to have been regularly descended will be less likely to be disputed than mine!
My business, if I have any here today, is with the present. The accepted time with God and his cause is the ever-living now. . . .
Fellow-citizens, pardon me, allow me to ask, why am I called upon to speak here today? What have I, or those I represent, to do with your national independence? Are the great principles of political freedom and of natural justice, embodied in that Declaration of Independence, extended to us? and am I, therefore, called upon to bring our humble offering to the national altar, and to confess the benefits and express devout gratitude for the blessings resulting from your independence to us? . . .
But, such is not the state of the case. I say it with a sad sense of the disparity between us. I am not included within the pale of this glorious anniversary! Your high independence only reveals the immeasurable distance between us. The blessings in which you, this day, rejoice, are not enjoyed in common.-The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by me. The sunlight that brought life and healing to you, has brought stripes and death to me. This Fourth July is yours, not mine. You may rejoice, I must mourn. To drag a man in fetters into the grand illuminated temple of liberty, and call upon him to join you in joyous anthems, were inhuman mockery and sacrilegious irony.
And thus the thundering “BOOM” is no long sounding in the distance for Douglass’ hearers, but right there in their midst as Douglass spoke. There’s more, a lot more, to what Frederick Douglass had to say that day, and every word of it bears reading.
On this Fourth of July, I wonder what the Fifth of July, 2024, will bring.
Perhaps King Charles of Great Britain will be writing to Chief Justice Roberts about the words of his majority opinion in Trump v United States. I can imagine His Majesty politely asking Roberts when Great Britain will be getting its North American colonies back, since SCOTUS has now overturned the unfortunate, mistaken allegations about the long-ago acts of his royal predecessor, George III. If a mere president like Trump is entitled to absolute immunity when he or she uses official powers that are core to his or her office, surely the same extends to an actual king like his ancestor George III, the opinions of Thomas Jefferson et al. notwithstanding. It may have taken Ye Olde Colonies almost 250 years to overrule, void, and repudiate the Declaration of Independence, but I’m sure King Charles would be gracious and let bygones be bygones.
On this Fourth of July, on a more serious note, I think of the musician Paul Simon. In late 1968, his musical partner Art Garfunkel suggested that Simon listen to a musical tune he had come across. It was centuries old, with German lyrics, but it was the music that grabbed Simon. They were looking to craft a Christmas album, but not using the usual Christmas classics. Simon was captured by the music, but was not able to come up suitable lyrics to fit a Christmas album.
It was the “Christmas” part that was the problem. As Simon said about his songwriting process,
I spend more time writing music than writing words. The music always precedes the words. The words often come from the sound of the music and eventually evolve into coherent thoughts. Or incoherent thoughts. Rhythm plays a crucial part in the lyric-making as well. It’s like a puzzle to find the right words to express what the music is saying.
The music that Garfunkel played for Simon was a part of Bach’s St. Matthew’s Passion that became the stand-alone hymn “O Sacred Head, Now Wounded.” Even without the words, Bach’s music has the feel of conflict, betrayal, and death. Bach’s music was not the music of Christmas, but Lent. But even though he couldn’t make the tune work for that Christmas album (that never got made), Simon didn’t forget that music, and he finally found the right words to express what the music was saying.
Many’s the time I’ve been mistaken
And many times confused
Yes, and I’ve often felt forsaken
And certainly misused
Oh, but I’m all right, I’m all right
I’m just weary to my bones
Still, you don’t expect to be bright and bon vivant
So far away from home
So far away from home
In the wake of the assassinations of Martin Luther King Jr. and Robert F. Kennedy, as the Vietnam War continued to spew destruction and death in ever-larger measure, and as Richard Nixon was elected president, Simon mourned for his country. He knew the pain of national mistakes, the fog of confusion over the nation’s founding story, and the forsakenness of separation from what that long-ago Fourth of July promised. And he and his nation were, above all, weary.
And yet.
And yet, the mistakes, the confusion, the forsakenness, and the weariness were not the end of the song. Skipping past the second verse and the bridge, Simon ends “American Tune” like this:
For we come on the ship they call the Mayflower
We come on the ship that sailed the moon
We come in the age’s most uncertain hour
And sing an American tune
But it’s all right, it’s all right, all right
You can’t be forever blessed
Still, tomorrow’s going to be another working day
And I’m trying to get some rest
That’s all I’m trying to get some rest
I’ve heard Simon’s version of this song hundreds of times, and also versions sung by all kinds of others. Two of the covers I like the best are those of Willie Nelson and Allen Toussaint. (Toussaint recorded it for his last album, which was released after his death.) In both Nelson’s country twang and Toussaint’s jazz/blues vocalizations, each voice resonates with the knowledge of mistakes, confusion, and forsakenness, and both also sing with the knowledge that despite the weariness, the work continues.
On this Fourth of July, I know that tomorrow — the Fifth of July — is another working day for this nation. As Frederick Douglass knew, it is a day to repair the mistakes, dispel the confusion, and welcome those who feel forsaken.
Allow me to say, in conclusion, notwithstanding the dark picture I have this day presented, of the state of the nation, I do not despair of this country. There are forces in operation, which must inevitably, work the downfall of slavery. “The arm of the Lord is not shortened,” and the doom of slavery is certain.
I, therefore, leave off where I began, with hope. While drawing encouragement from “the Declaration of Independence,” the great principles it contains, and the genius of American Institutions, my spirit is also cheered by the obvious tendencies of the age. Nations do not now stand in the same relation to each other that they did ages ago. No nation can now shut itself up, from the surrounding world, and trot round in the same old path of its fathers without interference. The time was when such could be done. Long established customs of hurtful character could formerly fence themselves in, and do their evil work with social impunity. Knowledge was then confined and enjoyed by the privileged few, and the multitude walked on in mental darkness. But a change has now come over the affairs of mankind. Walled cities and empires have become unfashionable. The arm of commerce has borne away the gates of the strong city. Intelligence is penetrating the darkest corners of the globe. It makes its pathway over and under the sea, as well as on the earth. Wind, steam, and lightning are its chartered agents. Oceans no longer divide, but link nations together. From Boston to London is now a holiday excursion. Space is comparatively annihilated.-Thoughts expressed on one side of the Atlantic, are distinctly heard on the other. . . .
No abuse, no outrage whether in taste, sport or avarice, can now hide itself from the all-pervading light.
The Fourth of July is a day of rest, my friends, because the Fifth of July is a day of work.
And we’ve got a lot of work to do.
In his latest effort to use the House Judiciary Committee as a goon squad to intimidate Donald Trump’s enemies, Jim Jordan actually developed proof that John Ratcliffe — and not the 51 former spooks he was after — inappropriately politicized intelligence to manufacture debate props.
And then Jordan did it himself.
I have the perfectly curated Xitter account to learn when Jim Jordan has released his latest installment of weaponization against democracy.
Last week, he issued his latest attempt to make a scandal out of the true free speech of the 51 former spooks who wrote a letter saying that the release of a Hunter Biden laptop days before the election “had all the classic earmarks of a Russian information operation.” My replies were overrun with trolls chanting incoherent claims.
Of course the trolls in my Xitter feed didn’t know the most basic details of the letter or known facts about the copy of a hard drive referred to as a Hunter Biden laptop:
Even though Jordan’s latest report substantiates absolutely no misconduct, the trolls nevertheless yapped and yapped about it. Jordan showed:
In other words, the 51 spooks followed the rules, and Jordan was stuck trying to turn it into a scandal.
The Jordan report was only 31 pages and, like a college freshman composition paper, blew entire pages with big screen caps repeating the complaints of two random spooks complaining about “random signatures” on the letter and some discussion of Mark Polymeropoulos getting something excluded from a follow-up.
Polymeropoulos’ attorney, Mark Zaid, explained that CIA redacted two lines, which had nothing to do with Hunter Biden, from the Polymeropoulos follow-up — but that was precisely how preclearance is supposed to work.
Mr. Polymeropolous submitted to the PCRB a two page talking points memo about the subject matter. Obviously, he knew that there was going to be media attention concerning the issue and he wanted to be properly prepared to address the topic if asked. He followed the standard procedure for review of information intended to be made public. No different than any other individual who has a prepublication review requirement. As part of its review, which was handled in the normal timely fashion for such a short document, CIA redacted two lines of information as being classified. Those two lines had nothing to do with the Hunter Biden laptop specifically and concerned Mr. Polymeropolous’ background experience with Russia and a comment concerning that country’s activities generally. Of course, that information was properly protected by Mr. Polymeropolous and never used. To say that this constituted an attempt to use classified information is farcical and reflects a complete lack of understanding how the prepublication review process works. The system operated exactly how it was supposed to and is being distorted for political purposes.
That’s it. That’s the best Jordan could rush out to give Trump something to complain about in a presidential debate over and over.
To think that I would, in front of generals and others, say suckers and losers – we have 19 people that said it was never said by me. It was made up by him, just like Russia, Russia, Russia was made up, just like the 51 intelligence agents are made up, just like the new thing with the 16 economists are talking.
It’s the same thing. Fifty-one intelligence agents said that the laptop was Russia disinformation. It wasn’t. That came from his son Hunter. It wasn’t Russia disinformation. He made up the suckers and losers, so he should apologize to me right now.
[snip]
I’ve dealt with politicians all my life. I’ve been on this side of the equation for the last eight years. I’ve never seen anybody lie like this guy. He lies – I’ve never seen it. He could look you in the face. So – and about so many other things, too.
And we mentioned the laptop, We mentioned “Russia, Russia, Russia,” “Ukraine, Ukraine, Ukraine.” And everything he does is a lie. It’s misinformation and disinformation. The “losers and suckers” story that he made up is a total lie on the military. It’s a disgrace.
This was Trump’s prepackaged answer to attempt to projection his own lying onto Biden. It was barely more vigorous than Biden’s rebuttals.
As flimsy as it was, though, Trump’s use of the 51-spook letter was part of a larger effort, one designed to bully those who speak up against Russian disinformation, disinformation generally, or in favor of rule of law. As John Brennan described, it created a furor about the letter that distracted from Russian intervention, which in turn serves to divide the country.
I think the firestorm, the furor has been created responding to the letter as opposed to the letter itself, as I responded to one of the Congressmen earlier. So it’s unfortunate that this is taking up all your time, it’s taking up my time, and it is, again, further dividing the country.
And, by design, it has chilled speech that talks about Russian interference.
One after another of the spooks interviewed confessed they or others would be chilled by the precedent of Jordan investigating private citizens for their free speech. Kristin Wood described how Mike Flynn put out all their names on a Telegram chat, leading to stalking and death threats.
Several ways. First of all, I’ve received death threats. I’ve received vicious calls, texts, emails from all sorts of random people. Mike Flynn — General Flynn posted on Telegram all of our names and said, you know, let them know how we feel. It unleashed this viciousness that had several other folks calling the police, calling the Threat Management Unit at CIA, to let them know what was happening.
And so for the first time ever, I looked at getting a gun and getting a concealed carry permit because it’s not just that people have been mean or say horrific things, but we’ve seen them take action. And so that feeling of vulnerability for speaking, exercising a First Amendment right, and for saying what I thought was as obvious as there’s air in — there’s air. Let’s just let the FBI do their work.
It has a profound effect on health as well. I’ve been to the emergency room for stress because of all of this. And so when you ask would I do this again, I would insist on a little more precision of language. But it has the effect of censoring people who have more than a thousand years of experience in this topic. And I would think the focus would be on stopping Russia and not on what feels like persecution.
Several of the spooks admitted the mob treatment would lead them to decline further involvement in anything political. Most described that it would chill others.
At that level, the spooks are just like the disinformation experts Jordan also targeted, those who tracked efforts to muddy reason and truth. Their lives have been upended because they attempted to track Russian disinformation that served Republican interests, and the personal and financial cost is shutting down those efforts during an election year.
But then something funny happened.
House Republicans kept pushing the spooks, arguing — notwithstanding the public reporting on Rudy Giuliani’s efforts to solicit dirt from known Russian agent Andrii Derkach — that the spooks should have known, somehow, that the hard drive called a Hunter Biden laptop wasn’t Russian disinformation (which, as noted, the spooks didn’t claim).
Republicans — often Jordan himself — kept asking whether the spooks knew that John Ratcliffe had claimed the laptop was not disinformation (which, again, was not what the letter claimed).
Chairman Jordan. Were you aware of Mr. Ratcliffe’s statement on the morning of the 19th, prior to the letter being sent, where he said in an interview on FOX News that morning that this is not part of the Russian disinformation campaign?
And that led multiple witnesses to explain why Ratcliffe simply wasn’t credible. Wood described that a proper counterintelligence investigation takes longer than would have transpired (no one knew how long the FBI had had the laptop).
Ms. Wood. So, I think what I would say in response to that is that the letter — the purpose of the letter was to say, Let’s not rush to judgment. Everyone, regardless of who they are as Americans, deserves due process. Let’s let the FBI do their work. And when DNI Ratcliffe said that — so as you have seen from all of these investigations, right, they take a very long time to do, to do the considered judgment of 17 or 18 intelligence agencies, and to come up with that to do the exhaustive search of asking new sources, of pulling in every bit of signals intelligence, there’s just no way that’s possible to have been done in the timeframe in which that statement was made. So our whole point was to say, Be careful here. Let us — we don’t know if this is all real. We don’t know if all the emails are real, and we don’t know if this is tied to the Russians. Let’s let the process work
James Clapper described that, not only didn’t he consider Ratcliffe a reliable source, but that he made the statement before any investigation of the laptop.
Mr. Clapper. Well, if the Department of Justice or the FBI or some other legitimate credible source of — who had done a credible forensic analysis — certainly I would accept that. That’s why I suggested that would be a good — would have been a good fix — a good addition to the letter had we said that.
Mr. Gaetz. Are you aware of Director Ratcliffe, the DNI at the time, contradicting the thrust of this letter you signed?
Mr. Clapper. Well, okay. He said that statement before, I think, an investigation had begun of the laptop. So I don’t know where he’s coming from making a statement like that.
In response to a follow-up question from the Minority, Clapper also agreed that Ratcliffe himself was making public statements in anticipation of the debate.
Q It’s an article reporting on Ratcliffe’s remarks, and it’s dated October 19th, 2020, 1:49 p.m. And we’re just introducing it for the fact of the date. The New York Post story in question was released on October 14th, correct?
A Yes.
Q So that would have been 5 days before Ratcliffe made his remarks?
A Right.
Q And I think you said earlier he couldn’t have even begun an investigation in that time period. Is that correct?
A Correct.
Q And can you explain what you mean by that?
A Well, I don’t know how — what his basis for making that statement is when the laptop itself hasn’t been investigated. The DNI, Office of the Director National Intelligence, has no organic forensic analysis capability at all. So they’re dependent on other components of the intelligence community, in this case the FBI, to render such a judgment, which hadn’t been rendered. So I don’t know how he could make that statement.
Q Okay. And even assuming that Ratcliffe — sorry. Withdraw that. And he made these remarks on October 19th, which was the day before the second debate, correct? The second Presidential debate was the 20th.
A Uh-huh.
Q So isn’t it possible that Ratcliffe also made his remarks in the hope that they would impact the debate?
A Well, one could conclude that, yes.
John Brennan was even more disdainful of Ratcliffe’s actions. He described that Ratcliffe’s release of his briefing notes, for the first 2020 debate, made it clear that Ratcliffe was involved in politics.
Chairman Jordan. Director, were you aware of what Director of National Intelligence John Ratcliffe said on the morning of October 19th regarding this Biden laptop story, where he said that it wasn’t a Russian disinformation operation?
Mr. Brennan. I don’t know if I was aware of it at the time, but I would have dismissed it anyway.
Chairman Jordan. Why would you have dismissed it?
Mr. Brennan. Because I don’t think John Ratcliffe was an independent, objective leader of the intelligence community at the time.
Chairman Jordan. So you would dismiss the statement from the Director of National Intelligence — the Acting — the Director of National Intelligence at the time, in the administration, getting intelligence in real-time, you would just dismiss that out of hand?
Mr. Brennan. Not out of hand, but I think it was — a week or two prior to that, there was a selective release of information that included my briefing notes to President Obama in the White House Situation Room that was misrepresenting, in fact, the facts, where it was pushed out in redacted version. And I did think that was a very, very unfortunate, unprofessional, unethical engagement on the part of the Director of National Intelligence in a Presidential election.
Mr. Gaetz. So your dismissing Mr. Ratcliffe was somehow payback for the fact that you thought that your briefing to President Obama had been mischaracterized?
Mr. Brennan. No, that’s not what I said.
Mr. Gaetz. Okay. Well, I’m trying to understand how this event that seems to have aggrieved you regarding the briefing to President Obama impacted your view of the Ratcliffe assessment.
Mr. Brennan. It didn’t aggrieve me. It just indicated to me that John Ratcliffe was not going to be an independent, nonpartisan, apolitical actor.
Brennan is referring to the notes he got about materials found among hacked documents in Russia, which Republicans and John Durham spun up, first of all, as true (rather than suspected Russian disinformation), and then misrepresented to claim that Hillary had a plan to frame Donald Trump.
Not only did Brennan see this as an election season stunt (which I observed at the time), but he described that Ratcliffe “misrepresent[ed] the facts” about the materials.
Jim Jordan has been searching for a former spook to accuse of politicizing intelligence in 2020 for years, and he finally found one! Trump’s hand-picked Director of National Intelligence, John Ratcliffe, who was doing precisely what Jordan falsely accused the former spooks of doing, but did so while still an employee of the Intelligence Community.
Update: Corrected that the “laptop” was not just a “hard drive,” but in fact a copy of another hard drive.
As I wrote in this post, John Roberts chose to cloak his radical opinion eliminating rule of law for Presidents by nodding to George Washington’s Farewell Address.
Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227. And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.” Id., at 226.
It is these enduring principles that guide our decision in this case.
As I showed, that was partly an attempt to spin the usurpation of Executive Branch prosecutorial authority between Administrations as, instead, protection of the separation of powers of co-equal branches.
But it was also an attempt to deploy Washington’s warnings against partisanship as if they counseled doing what Roberts was doing, rather than the opposite.
Roberts had the audacity, for example, to quote from a passage talking about how unbridled partisanship could lead to foreign influence, corruption, insurrection, and authoritarianism and suggest he was preventing that, rather than immunizing it.
I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view and warn you in the most solemn manner against the baneful effects of the spirit of party, generally.
This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but in those of the popular form it is seen in its greatest rankness and is truly their worst enemy.
The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation on the ruins of public liberty.
Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight) the common and continual mischiefs of the spirit of party are sufficient to make it the interest and the duty of a wise people to discourage and restrain it.
It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another. [my emphasis]
As I described in the initial release of Ball of Thread, the podcast I’m doing with LOLGOP, the Republicans on SCOTUS really believe Trump’s garbage claims that his prosecution was about revenge and despotism, rather than an effort to stave it off.
Trump has gotten people who claim to care about the country to view up as down, fascism as freedom.
Never mind that a court riddled with corruption scandals invoked the passage of the Farewell Address warning against it.
Between the shock of the overall holding and the obsession with Joe Biden’s poor debate, though, there has been little focus on an equally troubling part of Roberts’ opinion: one sanctioning the wholesale politicization of DOJ.
In the passage throwing out the charges involving Jeffrey Clark altogether, Roberts prohibits review of not just DOJ’s prosecutorial decisions (except, of course, when they involve a President’s predecessor, in which case DOJ has very constrained authority), but also of the President’s involvement in those decisions.
The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s “use of official power.” Brief for United States 46; see id., at 10–11; Tr. of Oral Arg. 125. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” Brief for United States 19 (quoting Morrison v. Olson, 487 U. S. 654, 706 (1988) (Scalia, J., dissenting)). And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’” Mitchell v. Forsyth, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8).
Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney, 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. Myers, 272 U. S., at 106, 176; see supra, at 8. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.” Fitzgerald, 457 U. S., at 750 (internal quotation marks and alteration omitted).
The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. App. 186–187, Indictment ¶10(c). And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. [my emphasis]
Here, Roberts turns the Take Care Clause on its head. Whereas conservative judge Karen Henderson viewed the Take Care Clause to require that the President obey the law, Roberts instead sees that as a source of permission for the President to demand investigations, even if they are proposed for an improper purpose.
In doing so, Roberts gives Joe Biden permission to demand an investigation of Ginni Thomas for the purpose of revenge against her spouse.
To be sure, in spite of Roberts’ expansive permission for President’s to politicize DOJ, there appear to be limits. Joe Biden cannot order the IRS to review whether Clarence Thomas has written off all the undeclared boondoggles Harlan Crow has given him.
One of the only laws specifically mention the President, it turns out, is 26 USC 7217, which prohibits certain people, including the President himself, from asking the IRS to take investigative action against a taxpayer.
(a)Prohibition
It shall be unlawful for any applicable person to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.(b)Reporting requirement
Any officer or employee of the Internal Revenue Service receiving any request prohibited by subsection (a) shall report the receipt of such request to the Treasury Inspector General for Tax Administration.[snip]
(e)Applicable person
For purposes of this section, the term “applicable person” means—
(1)the President, the Vice President, any employee of the executive office of the President, and any employee of the executive office of the Vice President; and
This law could one day, in the not-too-distant future, come before the Justices. It could even do so in the specific context at issue here, Donald Trump’s pressure on Jeffrey Rosen on December 27, 2020.
That’s because, as laid out in Hunter Biden’s selective and vindictive prosecution claim, in the very same conversation where Trump demanded that DOJ make false claims about election fraud, he also pressured Rosen to investigate Hunter Biden “for real.”
On December 27, 2020, then Acting Deputy Attorney General Richard Donoghue took handwritten notes of a call with President Trump and then Acting Attorney General Jeffrey Rosen, showing that Mr. Trump had instructed Mr. Rosen and Mr. Donoghue to “figure out what to do with H[unter] Biden” and indicating that Mr. Trump insisted “people will criticize the DOJ if he’s not investigated for real.”57
57 Dec. 27, 2020 Handwritten Notes of Richard Donoghue Released by H. Oversight Comm. at 4 (emphasis added), www.washingtonpost.com/context/read-richard-donoghue-s-handwrittennotes-on-trump-rosen-calls/cdc5a621-dfd1-440d-8dea-33a06ad753c8; see also Transcribed Interview of Richard Donoghue at 56 (Oct. 1, 2021), H. Oversight Comm., https://www.govinfo.gov/content/pkg/GPO-J6-TRANSCRIPT-CTRL0000034600/pdf/GPO-J6- TRANSCRIPT-CTRL0000034600.pdf.
Hunter Biden’s as-applied challenge to his gun charges are more likely to get to SCOTUS and do so more quickly.
But his prosecution, with the President privately and publicly intervening both as President and as candidate to replace his father raises fairly unprecedented questions about the due process rights of a person whom the President has demanded be investigated for the purpose of revenge.
Until such a case gets reviewed, however, John Roberts has invited Joe Biden to call up Merrick Garland and demand not just that DOJ open an investigation into Ginni Thomas, but to appoint a Special Counsel who could continue the investigation for the foreseeable future.
By refusing all review of improper pressure on the Attorney General, John Roberts has not eliminated the risk of revenge and despotism.
He has, rather, sanctioned it.
Since Republicans on the Supreme Court voted to make Presidents king yesterday, I’ve been thinking about ways to reverse the decision.
Some of those ways (like expanding the court) are structural, long term, and involve winning both the presidency and Senate in November by good margins.
But another way is to get the court to recognize how insane their ruling was in practice, to encourage them to moderate their order, as they did by using the Rahimi decision to moderate their Bruen insanity.
Another way is to use the pretrial hearings on what counts as official and unofficial conduct as a way to demonstrate the problem with the decision. Since any decisions Tanya Chutkan makes will come back to SCOTUS, they will have to review their handiwork.
But the one I keep thinking of is action President Biden can take that would demonstrate to the Justices the problem with their decision.
Some such actions would be symbolic: Biden can order the military to use military planes to fly women needing abortions in states where it is banned for necessary medical care, for example. Acting as Commander in Chief, his power would be at its zenith.
On Bluesky, someone recommended selling Willie Nelson a pardon — one guitar — for smoking marijuana in a National Park in a state where pot is legal.
But the most symbolic way that President Biden could convey the insanity of yesterday’s decision would be to pardon Nicholas Roske. Roske is the suicidal man who, in June 2022, flew to Maryland with vague plans but real weapons to assassinate Brett Kavanaugh. Since he filed a suppression motion for admissions he made after his arrest, he and the government have been discussing a plea.
Let me be clear: I don’t think it would be wise to pardon Roske. Biden has the unreviewable authority to do so, but it would be stupid to do so. While Roske seems he is mentally ill, he nevertheless armed himself and took steps that put Justice Kavanaugh in danger.
But Roske is exactly the kind of menace that John Roberts just immunized yesterday.
The weapons Roske armed himself with — including a Glock, pepper spray, zip ties, a hammer, a screw driver, a nail punch, a crow bar, and duct tape — were precisely the kinds of things with which January 6ers armed themselves when they attacked the Capitol and threatened to kill Mike Pence, Nancy Pelosi, and Mitch McConnell. Many January 6ers, like Roske, suffer from mental illnesses. Like Roske, many Jan6ers were trying to give their life meaning.
The only thing that makes Roske different is that he wasn’t sent by a political candidate trying to get elected.
Still, Roske is always used, especially by Congressional Republicans, to describe the unique danger the Justices face.
There would be no better way for Biden to make it clear to the Justices what kind of danger they have blessed than to pardon Roske (for which, again, I’m not advocating).
With their ruling yesterday, the Justices have said that Members of Congress, Biden voters, and democracy itself must face similar threats without recourse. And one way to make that clear would be to pardon Roske.
Because Steve Bannon is powerful — or perhaps because he has an effective publicist — multiple outlets decided to magnify Bannon’s views as he set off for prison for refusing to tell Congress about his role in planning an insurrection.
NBC’s interview largely gave Bannon the opportunity to undermine the integrity of any Democratic win in 2024. When Vaughn Hillyard asked Bannon to defend his claim that the Mar-a-Lago search had been an attempt to assassinate Trump, Hillyard never bothered to ask Bannon how that could happen, given that Trump was in New Jersey.
David Brooks’ interview gave Bannon opportunity to boast of his ties to European fascists (though like NBC, Brooks called Bannon’s work “populism,” not fascism).
STEVE BANNON: Well, I think it’s very simple: that the ruling elites of the West lost confidence in themselves. The elites have lost their faith in their countries. They’ve lost faith in the Westphalian system, the nation-state. They are more and more detached from the lived experience of their people.
On our show “War Room,” I probably spend at least 20 percent of our time talking about international elements in our movement. So we’ve made Nigel a rock star, Giorgia Meloni a rock star. Marine Le Pen is a rock star. Geert is a rock star. We talk about these people all the time.
Like NBC’s, Jon Karl’s interview consisted, substantially, of trying to get Bannon to admit he was calling for violence, with Bannon responding that it was all metaphor, figurative, Roman rhetoric.
All these journalists seem to think they’re going to get Bannon to admit he’s sowing violence, as if being just clever enough will get him to give up the game.
Bannon did say something interesting. When asked to describe Trump’s plans for a second term, Bannon described his plan to “end forever wars” to include the South China Sea:
The last bullet point is a plan to cede power to authoritarian countries — Russia, Saudi Arabia and the Emirates, and China — at least some of which are suspected of funding Bannon if not his long-time associate, Guo Wengui.
But none of these interviewers asked Bannon about Guo, about Guo’s ties to UAE and his suspected ties, still, to the Chinese state. They sure as hell didn’t ask him about DOJ’s treatment of Bannon as a co-conspirator in Guo’s alleged fraud against his rabid followers.
More remarkable still, none of these interviewers asked Bannon about his upcoming fraud trial, the fraud for which all his charged co-conspirators are already doing prison time.
Steve Bannon stands accused of bilking rabid Trump supporters to support his lavish lifestyle. DOJ says his whole shtick is a fraud — fraud that serves his pocketbook, a fraud that serves the elite, a fraud that serves fascism, a fraud that might even serve the very countries he claims to oppose.
And multiple journalists decided to interview Bannon is if an accused fraudster would ever tell them the truth.
[NB: check the byline, thanks. /~Rayne]
The last batch of decisions will drop shortly — I think. Last week the Supreme Court didn’t deliver all of the remaining decisions it had on its plate and pushed them into a new month.
I hope these outstanding cases will be decided today:
NetChoice, LLC v. Paxton and Moody v. NetChoice, LLC (these are both about social media and may come as one or two decisions)
Corner Post, Inc. v. Board of Governors Of The Federal Rsrv. Sys.
Decisions released today follow in an update at the bottom of this post.
~ ~ ~
First decision: Corner Post, Inc. v. Board of Governors Of The Federal Rsrv. Sys.
Justice Barrett wrote the 6-3 decision; Justice Brown Jackson wrote the dissent joined by Sotomayor and Kagan.
This one could cause a lot of problems forcing reassessment of past rules and decisions by the Fed Reserve’s Board based on the dates used — the date an injury occurred due to a new Fed rule versus the date the new rule was first in force.
Second decision: NetChoice, LLC v. Paxton and Moody v. NetChoice, LLC
Justice Kagan wrote the unanimous decision on these consolidated cases, though there are concurrences:
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SOTOMAYOR, KAVANAUGH, and BARRETT, JJ., joined in full, and in
which JACKSON, J., joined as to Parts I, II and III–A. BARRETT, J., filed a
concurring opinion. JACKSON, J., filed an opinion concurring in part and
concurring in the judgment. THOMAS, J., filed an opinion concurring in
the judgment. ALITO, J., filed an opinion concurring in the judgment, in
which THOMAS and GORSUCH, JJ., joined.
Whew. I don’t see the word “dissent” in this, do you? It’s another smackdown of the Fifth Circuit as well.
Third decision: Trump v. United States
Justice Roberts wrote the 6-3 court decision; Justice Sotomayor wrote a dissent joined by Kagan and Brown Jackson. Justice Brown Jackson also wrote a dissent.
From SCOTUSBlog’s thread:
The court holds that a former president has absolute immunity for his core constitutional powers.
Former presidents are also entitled to at least a presumption of immunity for their official acts.
There is no immunity, the court holds, for unofficial acts.
The core constitutional powers are things like appointing ambassadors and foreign governments.
This is not all of the decision – Roberts was still reading his decision at 10:37 a.m. ET. It looks like this is being handed back to lower courts because of the lack of distinction between official and unofficial acts. It also looks like the rightwing of SCOTUS has extended immunity to Trump for his discussions with Department of Justice, which I assume means if he made any false statements to FBI or other DOJ personnel, those charges will be dropped.
~ ~ ~
This is an open thread. Any further updates related to these cases will appear at the bottom of this post.
It took no time for the pundits calling for Joe Biden to drop out of the race to reveal their fundamental childishness by asking for someone — Gavin Newsom, Gretchen Whitmer, JB Pritzker, Josh Shapiro — whose selection would create as many problems as they might, hypothetically, solve.
Nicholas Kristof, pulling a paycheck from the same people who demanded Biden step down because he didn’t do their job — “hold Mr. Trump accountable for his lies, his failures and his chilling plans” — well enough, even suggested the 71-year old guy running for a must-win Senate seat should take Joe’s place.
Biden can resolve this by withdrawing from the race. There isn’t time to hold new primaries, but he could throw the choice of a successor to the Democratic National Convention in Chicago. The Democratic Party has some prominent figures who I think would be in a good position to defeat Trump in November, among them Gov. Gretchen Whitmer of Michigan, Senator Sherrod Brown of Ohio and Gina Raimondo, the secretary of commerce. And there are many others. [my emphasis]
These are not serious people, or even very smart about politics.
For both political and legal reasons, it would be doable to swap Biden for Kamala Harris, and for the same political and legal reasons, swapping Biden for anyone else is highly likely to do at least as much harm as good.
There are a number of people making this point succinctly. Jamelle Bouie has said it in a lot of ways worth following. Dan Drezner says it here.
But even these guys are making what I view to be a potentially catastrophic mistake. They think Biden should both step down from the race and resign the presidency, as Drezner lays out this way.
Here’s the thing, though: if Biden were to decide to step aside in the wake of a poor debate performance, the inevitable question would be whether he should step aside immediately. As previously noted, he is only going to keep aging, and the federal government cannot function well with a 10-4 presidency.
Biden resigning this summer would generate three political advantages. First, Kamala Harris being sworn in as the first lady president would be, to quote Biden, a big fucking deal. It would be a suitable final act in Biden’s distinguished political biography. Second, it would make the November election a choice between former president Trump and President Harris. The move would put Harris at Trump’s level and eliminate experience as a Trump argument during the campaign. Finally, Harris being president would remove the inherent awkwardness that sitting vice presidents have faced when running for the top job: being unable to disagree or disavow the sitting president’s policies. Anything that makes it easier for Kamala Harris to not resemble Al Gore is a good thing.
I think these calls for Biden to resign are as facile as the calls for Gretchen Whitmer to march into the convention and take over (much as I might like that to happen).
That’s true for one big reason: It turns out with a House packed with rabid supporters of Trump and led by a better-spoken but equally rabid supporter of this fascist project, having a Vice President is an important failsafe for democracy.
That’s true for two reasons. First, remember what happened on January 6, 2021? Big mob, chants of “hang the VP,” tweets encouraging the mob to do so? The VP may not have a big portfolio on most days. But she does on the day that, recent history warns us, is a fragile moment of our democracy. Certainly, it’s possible Democrats could convince Republicans to let Patty Murray do that job, as Chuck Grassley was prepared to do back in 2021.
But the bigger problem is the target you would put on Kamala Harris’ back if she became a President, running for re-election, without a Vice President as her designated successor. Trump has already made it clear he plans to return to power by any means necessary. Trump has already spent years frothing up his followers to a frenzy that could (and has) tipped into violence with little notice. Indeed, more than a handful of Trump’s supporters have embraced violence, some after getting riled up on Truth Social, others after little more than an incendiary Fox News rant.
The Secret Service did a piss poor job of protecting Kamala Harris on January 6. Let’s not tempt fate or Trump’s rabid brown shirts to make Mike Johnson President.
Besides, very few of the pundits screaming to replace Biden are focused on governance. This Franklin Foer piece, for example, engages in paragraph after paragraph of projection about the motives of Biden’s top aides, argues that it’s not enough to be a good President, Biden also has to campaign competently.
When I talk with aides on the inside, they never question Biden’s governing capacity. Perhaps this is their own wishful thinking. Perhaps they are better able to see how the benefits of experience overwhelm his inability to recall a name. But it’s also the product of a delusion among the Democratic elite about what constitutes effective leadership. Governing competently is different from campaigning competently. The ability to think strategically about China, or to negotiate a complicated piece of bipartisan legislation, is not the limit of politics. It’s not enough to deliver technocratic accomplishments or to prudently manage a chaotic global scene—a politician must also connect with the voters, and convince them that they’re in good hands. And the Biden presidency has always required explaining away the fact that the public wasn’t buying what he was selling, even when the goods seemed particularly attractive. [my emphasis]
The noxious NYT op-ed calling on Biden to step down because he doesn’t do their job well enough is likewise focused on Biden as campaigner.
The president appeared on Thursday night as the shadow of a great public servant. He struggled to explain what he would accomplish in a second term. He struggled to respond to Mr. Trump’s provocations. He struggled to hold Mr. Trump accountable for his lies, his failures and his chilling plans. More than once, he struggled to make it to the end of a sentence.
Mr. Biden has been an admirable president. Under his leadership, the nation has prospered and begun to address a range of long-term challenges, and the wounds ripped open by Mr. Trump have begun to heal. But the greatest public service Mr. Biden can now perform is to announce that he will not continue to run for re-election.
As it stands, the president is engaged in a reckless gamble. There are Democratic leaders better equipped to present clear, compelling and energetic alternatives to a second Trump presidency. There is no reason for the party to risk the stability and security of the country by forcing voters to choose between Mr. Trump’s deficiencies and those of Mr. Biden.
[snip]
[T]he United States needs a stronger opponent to the presumptive Republican nominee. To make a call for a new Democratic nominee this late in a campaign is a decision not taken lightly, but it reflects the scale and seriousness of Mr. Trump’s challenge to the values and institutions of this country and the inadequacy of Mr. Biden to confront him.
And it makes sense. As I argued, when Biden responded to a focus on his age in January, he correctly said he was doing one amazingly taxing job well, that of being President. But in recent weeks, he has also been in the thick of an equally taxing job, flying around the country and glad-handing potential voters, many of whom carry germs that don’t normally make their way into the Oval Office. He has also had the stress of his son getting convicted in a trial that would never have happened if he weren’t the son of President Joe Biden. This is best understood, in my mind, as a question about whether Biden can do the two jobs required of him.
Aside from his Israeli policy, Biden is, most Democratic voters (and even NYT’s editorial board) will concede, a remarkably successful President. Via whatever means, he has managed to do that job well, even at the ripe age of 81.
If he’s doing his day job well but there are questions about whether he has the stamina to do a second full-time job on top of the first one, the answer is not to send him out to pasture on both.
This is a perceived or real stamina problem, not — at least thus far — a competence problem.
Which means there’s no reason to create another succession crisis in an attempt to save democracy.
The goal here is not just to prevent Trump from winning the election. The goal is to prevent Trump from attaining the Presidency again, via whatever means he plans to pursue. And for that reason, it is highly unwise to add points of potential failure he can exploit where, thus far, there are none.