The Supreme Court has gone rogue. Now is the time to start fixing it

The conservative Supreme Court has gone rogue. It has “cemented its place in history as the most radical Supreme Court ever,” in the words of historian Kevin Kruse. It handcuffed all federal regulatory agencies last week, and elevated the president to king on Monday. They’ve done so on behalf of the American oligarchs who have bankrolled the lavish lifestyle of at least two of the justices. They have also done so on behalf of twice-impeached convicted felon Donald Trump.

If there is any hope of salvaging our republic out of this mess, President Joe Biden and Democrats have to fight back, immediately, in the campaign and in action. That means setting aside the trust institutionalists like Biden and Senate Judiciary Chair Dick Durbin have in the system and in the basic decency of people like Chief Justice John Roberts. It means directly taking on the corrupt court and making the case to the American people that it has to be stopped.

Biden made a start Monday evening, giving a short prime-time address to the nation to point out the “dangerous precedent” of placing “virtually no limits on what a president can do.”

“This decision,” Biden said, “has continued the court’s attack in recent years on a wide range of long-established legal principles in our nation, from gutting voting rights and civil rights to taking away a woman’s right to choose to today’s decision that undermines the rule of law of this nation.”

In perhaps the most chilling words a president has uttered since the Civil War, Biden starkly defined where we’re at as a nation. 

“[I]t will depend on the character of the men and women who hold that presidency that are going to define the limits of the power of the presidency,” he said, “because the law will no longer do it.” 

That’s Biden declaring that, as of Monday, we are no longer a nation under the rule of law because of a decision made by a court that is fundamentally corrupt—the essential backdrop to this momentously, historically awful term.

Start with Justice Clarence Thomas, whose corruption has been detailed in months of reporting from ProPublica: the undeclared luxury trips, gifts, and real estate deals; the cozying up to the Koch machine; his own extortion of the court and the oligarchs insisting that if he didn’t benefit financially, he would leave the court. There’s also his wife, Ginni, who not only plotted in Trump’s efforts to overturn the 2020 election, but was rewarded by another billionaire—Leonard Leo—who funneled tens of thousands to her for consulting work. 

Not to be outdone in either the grift or the partisanship game, there’s Justice Samuel Alito. He was there for the luxury trips from hedge fund billionaires and the lavish trip to Rome to be feted for writing the decision that overturned Roe v. Wade. Like Thomas, Alito lets his spouse do his partisanship talk for him, or rather the flag-flying.

Then there’s Roberts refusing to even answer questions from the Senate about how these bought-and-paid for ideologues have tarnished the institution or to consider implementing a binding ethics reform to attempt to redeem the court.

And voters know it. Trust in the court plummeted after it overturned Roe to record lows, and it is not recovering.

So here we are. The only thing that can forestall the end of the republic is our vote and the hope that democrats—and Democrats—prevail in November in numbers that can’t be denied. Maybe then elected Democrats will fix this mess.

There are plenty of good ideas for reshaping the court from expanding it to imposing term limits to create a stable of justices that rotate in and out of the court. The solutions are there—Democrats need to embrace them. And run on them.

That can start with rallying around Rep. Alexandria Ocasio-Cortez’s impeachment resolution against the justices who perpetrated this “assault on American democracy.” No, it won’t move forward in a Republican-controlled House, but it can help unite Democrats for an immediate course of action should they regain the House.

House Democratic Leader Hakeem Jeffries echoed that, saying Democrats plan to “engage in aggressive oversight and legislative activity” to determine that “extreme, far-right justices in the [Supreme Court] majority are brought into compliance with the Constitution.”

The Senate has to take the lead in the coming months, and it has to come from Durbin, who failed in his first task of responding to the devastating ruling. He complained over spilled milk, that Thomas and Alito “brazenly refused to recuse themselves from this case.” He scolded Roberts for not using “his existing authority to enact an enforceable code of conduct.”

It’s a lot too late for that. Durbin and his colleagues need to get on the same page as House Democrats, because they actually are in an oversight position and need to start using it. No, they can’t fix the Supreme Court now, but they can start building the case for it. 

They have to win back the two elected branches, and one of the best ways to do it will be to put aside the niceties of institutionalism and comity and declare war on the unelected branch—the one that would make Trump king.

In the aftermath of the Supreme Court's Bloody Monday, every single Democrat should be talking about that—exclusively that. Enough hand-wringing over Biden’s debate performance. Enough speculation about replacing the top of the ticket. Enough Democrats in disarray. Too much is at stake now.

Tell the people—show the people—the danger the republic is in. How Democrats react now to what this court has done could make all the difference in November.

If you want to help make America the place it ought to be, it starts by electing more and better Democrats. And you can do your part right here. Please give $10 to each of these Daily Kos-endorsed candidates today!

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Alito’s explanation for his upside-down flag has fallen apart

New information shows that everything Supreme Court Justice Samuel Alito has said about the reason an American flag was flown upside down over his home appears to have been a lie. Alito blamed the flag on a dispute with neighbors. Unfortunately for the prevaricating justice, his wife’s altercation with the neighbors became so extreme that those neighbors called the cops. The police report shows that the altercation came weeks after the upside-down flag was hoisted over Alito’s home.

On May 16, The New York Times broke the story that an American flag was flown upside down at the Alito home in January 2021. The upside-down flag, long used as a signal of distress, was appropriated by Donald Trump supporters following Jan. 6, 2021, to express their solidarity with the insurrectionists who had smashed their way into the Capitol building.

Alito denied any connection to the flag and claimed that his wife had put up this symbol in response to an altercation with a neighbor. He also claimed those neighbors had placed an offensive sign about Trump where it was near children waiting to board a school bus. But that excuse always had problems.

Now everything about Alito’s story is falling apart.

The story that Alito told Fox News reporters was that his wife flew the flag because neighbor Emily Baden placed a “Fuck Trump” sign in her yard that was within 50 feet of where children were waiting for the school bus in January 2021. Alito said that his wife had tried to talk to the neighbors about having a vulgar sign so close to where children waited for the bus, but that the conversation ended in an argument. 

Alito then claimed that Baden put up a sign that personally insulted Martha-Ann Alito and blamed her for the Jan. 6 assault. Finally, Alito said that he and his wife were walking through the neighborhood, ran into a man who lived at the property, and he called Martha-Ann Alito a number of disparaging terms, including the c-word.

So she went home and raised a flag in support of insurrection. As one does.

However, even a cursory look at Alito’s claims shows that they’re simply not true. In January 2021, area schools were still dealing with Trump’s mishandling of the pandemic. Children would not return to the classroom until March. So no children were waiting for the bus for Alito’s wife to be concerned about.

The latest information paints a very different picture of the interaction between Baden and the Alitos. Baden and her then-boyfriend, now husband, reported that Martha-Ann Alito was repeatedly harassing them to the point where they called the police and asked them to intervene. 

“Aside from putting up a sign, we did not begin or instigate any of these confrontations,” Baden told Times reporters.

At some point in January, the original “Fuck Trump” sign blew over. Martha-Ann Alito approached Baden thinking that the sign had been removed, but according to Baden, this encounter didn’t end in an argument. It was the first time Baden could ever recall speaking to either of the Alitos.

Following the Jan. 6 insurrection, Baden added two new signs. One of these read “Trump is a fascist.” The other said, “You are complicit.” Neither mentioned Martha-Ann or Samuel Alito, and Baden says that the signs were not aimed at them. Baden’s mother took the signs down out of concern that the same kind of people who attacked the Capitol might bring that kind of violence to their home.

Sometime after the signs had been removed, Baden and her boyfriend saw Martha-Ann. Alito sitting in a car outside their home and glaring at them in a way notable enough that they mentioned it to friends. A few days after President Joe Biden’s inauguration—which Samuel Alito skipped—the couple was driving past the Alito home when Alito’s wife ran toward their car, yelling something they couldn’t hear. She then appeared to spit in their direction.

It wasn’t until Feb. 15, a month after the upside-down flag flew over the Alito home, that the Alitos walked past Baden’s home while she and her boyfriend were bringing in the trash containers. Martha-Ann Alito then “used an expletive” and called them “fascists,” Baden told Times reporters. This event was also noted in texts that Baden sent at the time.

At that point, Baden said she snapped. 

She does not remember her precise words, but recalls something like this: How dare you behave this way. You’ve been harassing us, over signs. You represent the highest court in the land. Shame on you.

Her boyfriend admitted that he chased this statement with the use of the C-word. The incident was also observed by a neighbor. 

Following this exchange, the boyfriend went inside and called the police, confirming that it happened on Feb. 15, not before the flag was flown on Jan. 17, as Alito told Fox News reporters.

Alito’s excuse about the kids and the school bus was a lie. His claim that the flag was flown following a dispute with the neighbors is inaccurate. And none of it explains why he flew another pro-insurrection flag over his vacation home.

The Supreme Court is currently considering Trump’s motion for absolute legal immunity for his actions to interfere with the 2020 election while in office. It’s also determining whether the insurrectionists involved in the attempted coup on Jan. 6, 2021, can appropriately be charged with obstruction

Alito has not recused himself from either of these cases. And on Wednesday, he stated in a letter to Congress that he will not recuse himself.

“I am therefore duty-bound to reject your recusal request,” he claimed in the letter.

The idea that Alito should be involved in considering any case connected with Trump, Jan. 6, or the 2020 election completely violates any concept of judicial ethics. This isn’t just the appearance of a conflict. It’s a conflict.

The only real question is: Will anyone do anything about it?

The revelation that Alito had flown a pro-Trump flag at a second location sparked renewed pressure in the Senate. Judiciary Committee Chair Dick Durbin has been calling for Alito to recuse himself—which he’s now outright rejected—and for Chief Justice John Roberts to call this rogue justice into line.

“[Chief] Justice Roberts has to step back and realize the damage that’s being done to the reputation of the court,” Durbin told The Washington Post.

The Senate Judiciary Committee needs to open an investigation into Alito’s partisan support for the pro-Trump insurrection. They need to do it immediately.

Two other members of the committee, Sheldon Whitehouse and Richard Blumenthal, have been pressing Durbin to take action. That includes Blumenthal noting that while the Senate can’t regulate the actions of the Supreme Court, it isn’t without power—including the ability to set the number of justices on the court. And outside groups, like Indivisible and Demand Justice, as well as legal experts have also demanded an investigation into Alito’s leanings.

The new information showing that Alito’s claims about the flag incident were simply untrue only reinforces the need for the Senate to move. An impeachment of Alito is fully warranted, but with Republicans holding a narrow margin in the House and anxious to show their allegiance to Trump over the nation, an impeachment seems next to impossible.

There’s no time like the present to dilute Alito’s toxic presence by adding more seats to the Supreme Court.

RELATED STORY: The pressure is building for the Senate to do something about Alito

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The pressure is building for the Senate to do something about Alito

Supreme Court Justice Samuel Alito’s insurrectionist flag flying was bad enough the first time around. The second instance demands action. Congress, Chief Justice John Roberts, and the third branch body that oversees the judiciary—the Judicial Conference—have to act, but it’s not going to happen unless the Senate Judiciary Committee raises some hell. 

The problem is the chair of that committee, who is also the No. 2 leader of the Senate Democrats, is dithering. Dick Durbin of Illinois, told reporters “I don't think there's much to be gained with a hearing at this point” when news broke that Alito flew an upside-down American flag at his home days after the violent insurrection of Jan. 6, 2021, as well as while the court was still considering whether to take up cases over the 2020 election.

“I think he should recuse himself from cases involving Trump and his administration,” Durbin continued.

After the second flag scandal, Durbin is still just calling for Alito’s recusal on cases the court is deciding right now: Donald Trump’s immunity in criminal cases in his efforts to overturn the 2020 election and on the prosecution of Jan. 6 riot participants. He’s still not sure whether his committee should investigate; He wants more time to think about it.

“Justice Alito is not taking care to avoid political identity,” he told The Washington Post. “He is identifying the right-wing elements in our political system. And that’s unfortunate. It’s further evidence of the need for him to recuse himself from cases that involve the Trump administration.”

“[Chief] Justice Roberts has to step back and realize the damage that’s being done to the reputation of the court,” Durbin added.

Roberts might realize that, but the chances that he’s going to do something about it are about as unlikely as Alito’s recusal.

Outside groups, including Indivisible and Demand Justice, as well as legal experts are pressuring Durbin to act by launching an investigation into Alito’s insurrectionist leanings. “Chief Justice Roberts must demand that Justices Thomas and Alito not be allowed to participate in deciding the immunity case or any other decision related to Jan. 6,” Norman Eisen, former impeachment counsel to the House Judiciary Committee, and Michael Podhorzer, senior fellow at the Center for American Progress, wrote this week for MSNBC.  

“And the Senate should hold hearings immediately investigating their conduct. Any other course risks the court’s legitimacy, Americans’ rights and the rule of law,” they concluded.

Durbin is facing pressure inside the Senate as well. Two Democrats on the Judiciary Committee, both nipping at Durbin’s heels to succeed him as chair, want more. Sen. Sheldon Whitehouse of Rhode Island told MSNBC’s Lawrence O'Donnell that what Alito is doing by refusing to recuse on these cases is breaking a "law passed by Congress, specifically applicable to Supreme Court Justices. When they pay no attention to it, they are actually violating statutory law."

Whitehouse went on to say that “it has gotten to the point where the Chief Justice has to engage, and I think you will see more action on that shortly out of the Judiciary Committee.”

Sen. Richard Blumenthal of Connecticut told MSNBC’s Chris Hayes Tuesday that “Chief Justice Roberts ought to be summoned to a hearing before the Judiciary Committee of the Senate. He ought to show some leadership and be held accountable.”

“Of course, Justice Alito ought to be subpoenaed as well in my view, but likely he is not going to appear and I think it is a time of reckoning for the Congress,” Blumenthal continued.

“Justice Alito says the Congress can't regulate, to use his term, the Supreme Court. But the Congress set salaries. It sets rules of procedure. It sets the numbers of justices. The founders didn't want the United States Supreme Court to be above the law.”

Alito famously declared himself and the rest of the justices just that in an interview with The Wall Street Journal last year, in which he made a startling assertion of constitutional power: “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”

That interview was with David Rivkin Jr., a regular contributor to the WSJ who also happens to be a lawyer who was about to argue a major tax case before the court. Durbin once again called on Alito to recuse from that case, as well as on Roberts to do something about Alito, for all the good it did.

This is not so subtle pressure on Durbin to do more than tweet sternly worded statements from two of his senior committee members. They see what all of us see: Asking nicely for Alito to recuse—which Durbin and House Democrats have done—is weak sauce.

It’s time to act. House Democratic leadership should be talking impeachment instead of issuing empty demands to Alito. No, Speaker Mike Johnson won’t go along with it, but Democrats are a hair's breadth from having control of the House and they should act like it. They are also likely to take the House back in November, which gives an impeachment threat now more weight.

The Senate Judiciary, led by Durbin, has to investigate. They have to put maximum pressure on Roberts starting right now, before the court issues its rulings on Trump immunity. 

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We're heading across the pond for this week's episode of "The Downballot" after the UK just announced it would hold snap elections—on July 4, no less. Co-host David Beard gives us Yanks a full run-down, including how the elections will work, what the polls are predicting, and what Labour plans to do if it finally ends 14 years of Conservative rule. We also take detours into Scotland and Rwanda (believe it or not) and bear down on a small far-right party that could cost the Tories dearly.

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Harlan Crow blows off another Senate committee

Harlan Crow, Texas real estate magnate and very dear friend of Supreme Court Justice Clarence Thomas, has instructed his lawyer to tell yet another Senate committee to pound sand. Congress doesn’t have the authority to oversee the Supreme Court, the lawyer asserted in a response to the Judiciary Committee’s request for details of the millions of dollars in gifts, travel, hospitality, and real estate transactions provided to Thomas by Crow—money and perks that Thomas has failed to disclose for decades, potentially in violation of federal disclosure laws.

“After careful consideration,” Crow’s lawyer, Michael Bopp, writes, “we do not believe the Committee has the authority to investigate Mr. Crow's personal friendship with Justice Clarence Thomas.” Of course it has that authority. That whole “checks and balances” business we all learned about in civics class—that’s what that’s about. The founders wouldn’t have allowed for the impeachment of Supreme Court justices if they didn’t intend for Congress to be able to check the court.

Crow’s lawyer isn’t just asserting that the Supreme Court is off limits, but that anyone a justice receives special favors from is off limits, too. Life’s great when you’re an untouchable billionaire in America. What the committee was asking for is Crow’s records, not Thomas’, as Judiciary Chairman Dick Durbin pointed out. “Mr. Crow’s letter relies on a separation of powers defense when Mr. Crow does not work, and has never worked, for the Supreme Court.”

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It’s similar to the argument that Crow’s lawyers made to Sen. Ron Wyden, chair of the Finance Committee, when he requested records disclosing all the expensive things Crow has bestowed upon Thomas and Crow’s reporting of these gifts for tax purposes, which the committee oversees. Bopp responded to Wyden with a refusal and claim that the Finance Committee doesn’t have the right to ask for that information, writing that the “Committee must have a legitimate legislative purpose for any inquiry, and the scope of the inquiry must be reasonably related to that purpose.”

Wyden slammed back, assuring Crow’s attorney that his “claim is without merit” and “ignores the Committee’s extensive history considering legislation on matters related to the gift tax, which is a backstop to both our nation’s income and estate tax regimes.” He demanded the information again, and in a statement said it was possible that the committee would have to “follow another route to compel his answers, and I’m prepared to make that happen.” In other words: a subpoena.

Durbin suggested he would consider that route as well, now that Sen. Dianne Feinstein has returned from her illness and Democrats have a majority vote on the committee again, with the power to issue subpoenas. “The Committee will respond more fully to this letter in short order,” Durbin said.

Crow clearly believes he’s not answerable to anyone, and by extension, neither should Thomas be. It’s the premise Chief Justice John Roberts has also adopted with his absolute refusal to appear before the committee to talk about the massive lapses in ethics that have come to light recently. They’re all taking the “Supreme” part of the title way too literally.

Crow insists that he’s a “private person,” “just an old guy” with a penchant for collecting Supreme Court justices to go along with his Nazi memorabilia and statues of dictators. The fact that he’s poured tons of money into right-wing causes, and recruited other millionaires and billionaires to the cause of turning the Supreme Court into the hyperpartisan political entity it is doesn’t mean that he’s not acting with the purest of motives when it comes to his friendship with Thomas.

That seems to be the prevailing attitude on the court, and that’s a massive problem for the nation when public confidence in the highest court has plunged to the lowest level in decades, in multiple surveys. Notably, most were conducted before all the revelations of Thomas’ extremely generous and secretive friend.

It is objectively dangerous for the court to be considered illegitimate by the people. It’s even more dangerous to have the court behave so badly. The government as a whole is resting on what’s a pretty flimsy piece of parchment, after all. It continues to exist as a democracy only as long as we all agree that it should. Or as long as every official who took an oath to the Constitution abides by that commitment.

The current majority on the court isn’t doing that. They won’t do that. They won’t even talk to Congress about whether or not they should be living by the most basic of ethics rules. That has to be fixed, and it has to be done by Congress and the White House. The only way to deal with the problem quickly is to expand the court. After that, further reforms can be examined, but right now, it’s the best way.

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Hell yeah! Democrats and progressives simply crushed it from coast to coast on Tuesday night, so co-hosts David Nir and David Beard are devoting this week's entire episode of "The Downballot" to reveling in all the highlights. At the very top of the list is Jacksonville, where Democrats won the mayor's race for just the second time in three decades—and gave the Florida Democratic Party a much-needed shot in the arm. Republicans also lost the mayor's office in the longtime conservative bastion of Colorado Springs for the first time since the city began holding direct elections for the job 45 years ago.

Republicans still fighting results of 2020 election, refusing to allow Democratic Senate to organize

It's now February and nearly a full month since the Jan. 5 election in Georgia that flipped the Senate to Democrats. At least nominally—the body is split 50-50 and the weight goes to Democrats because they can bring in Vice President Kamala Harris as necessary, so they've got the majority. But the Senate still hasn't passed the organizing resolution to finalize all that and, critically, hand the keys of the committees over to the Democrats.

Why? Sen. Dick Durbin says it’s Sen. Mitch McConnell. "He's the key to it," Durbin told CNN's Manu Raju after an infuriating exchange of tweets and letters Durbin has had with the abhorrent Lindsey Graham, who is the pretender in the Judiciary Committee chair. Technically, the committee doesn't have a chair. The committee doesn't have members, not until the organizing resolution passes. But habit is keeping the gavel in Graham's hand, and he's refusing to schedule a hearing for President Biden's nominee for attorney general, Merrick Garland. Durbin went public with his frustration Monday afternoon tweeting out a plea and a letter to Graham to schedule the damned confirmation hearing on Feb. 8.

To which Graham replied in his typical pissy, hypocritical way. In other words, no, he's not going to extend even a bit of consideration or courtesy, and he's going to be a condescending and patronizing ass in "explaining" why. "Your request is highly unusual," he says. Then he blames it on impeachment and goes through three paragraphs of lecture about committee procedure. Which Durbin knows. Well.

The committee has reams of background material on Garland and has had it since 2016, the last time Republicans were assholes about this particular—completely qualified and non-controversial—nominee, that time for the even more important job on the Supreme Court. 

This might be McConnell and team exacting revenge for their embarrassing loss in filibustering the organizing resolution to keep the filibuster. They're dragging this out as long as they can, though talks among staff have reportedly been "productive." Soon, aides say, maybe as soon as Tuesday. But no one is giving a deadline.

At this point, Biden should just start threatening to name all his nominees who haven't yet had hearings "acting" directors and Schumer should try to force them onto the floor without committee hearings. It would take unanimous consent, but it would also highlight the fact that Republicans are still fighting the results of the 2020 election by refusing to allow Biden to complete his government and the Senate to fully function.

The door has to be slammed on Trump’s future. He must be impeached and convicted

Insurrectionist loser Donald Trump finally was forced by someone to issue a statement of concession Thursday morning. That statement, as much as anything that has transpired over the past four awful years and horrifying 24 hours, demonstrates why Trump must be impeached and convicted in the next 13 days.

"Even though I totally disagree with the outcome of the election, and the facts bear me out, nevertheless there will be an orderly transition on January 20th," the statement reads. Still with the baseless claims of fraud. But this is where the danger lies: "I have always said we would continue our fight to ensure that only legal votes were counted. While this represents the end of the greatest first term in presidential history, it's only the beginning of our fight to Make America Great Again!" That's Trump promising that he will not go away, that he is going to continue to foment civil war, that he's going to hang on to his army of violent extremists and continue this fight. Preventing him from doing that has to be the first priority for the next two weeks in Congress.

Thursday, Jan 7, 2021 · 4:56:38 PM +00:00 · Joan McCarter

This is very good. Thank you, Sen. Merkley. 

Trump is absolutely unfit and should be removed from office. If we can do it by Jan 20 by impeachment, I am all for it. The cabinet and VP can and should invoke the 25th Amendment TODAY. And there should be criminal investigations and prosecutions. Justice demands accountability.

— Senator Jeff Merkley (@SenJeffMerkley) January 7, 2021

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Trump has forfeited any future in American public life and the Congress must ensure that. The door for Trump to participate in any kind of public life ever again has to be slammed shut. That’s why he must be impeached. Any avenue for him back to power has to be completely blocked. More than that, the Republicans that have enabled him for the past four years have to be held to account—and that's also why he must be impeached and convicted.

Senate Democrats are already making excuses. They are already giving their Republican colleagues an out. Oregon Democrat Jeff Merkley says: "To take these critical few weeks and spend them on a President who is going to be removed on January 20th would be a disservice to our nation." Called on that by David Nir, he lamely lets Republicans off the hook. "If we can do it by Jan 20, I am all for it. But unfortunately, Mitch McConnell still runs the Senate until Trump's term is up." That's pathetic excuse-making from Merkley. He's not the only one. Sen. Dick Durbin, a member of Senate leadership, told reporters: "He certainly deserves it […] after what happened yesterday he should be removed from office but I don’t believe there's stomach for it on the Republican side and there's very little time left."

Trump has to be stopped and the Republicans who enabled him have to be stopped. Ted Cruz and Josh Hawley have to be stopped. They each think they can capitalize on their role in this insurrection to the White House and with what we've experienced since 2016, they might not be wrong. They have to be shut down. Forcing them—forcing McConnell—to face what they have created and force them to either stand behind it or renounce it is vitally important. What happened on Jan. 6 could very well happen again, at Trump's instigation and with Republican complicity. That can't be allowed. Impeachment is one critical way to stop it.