Tough talk on dealing with repairing the damage to SCOTUS

There is a lot of talk about what to do to repair the damage done to the Supreme Court by the Republican Party. One idea is to reduce the number of justices to six, casting aside the three Trump appointees. There is a major problem with this. Last on, first off does not work with lifetime federal judicial appointments. The only times the size of the court was reduced in the past—in 1800 and 1866—there was either a vacancy on the court that was eliminated, or the number of justices was reduced through attrition and non-filling of vacancies. The only constitutional way to remove a justice from the court is through impeachment (which we all know will never work as long as there are 34 GOP senators, and which has failed in the past). Which also means that impeaching, say, Kavanaugh, for perjury during his confirmation hearings, while probably entirely warranted, is a non-starter.

We Democrats are frankly not very good at making a case for ourselves. As a litigator, it was my job to make the best case for my clients. So, here goes.

Just FYI (and for what it’s worth), I am a lawyer and a member of the Bar of the Supreme Court of the United States.

Let’s begin with an important statistic, a piece of evidence , if you will: GOP presidents have made 15 of the last 19 SCOTUS appointments. And let’s look at a subset of that mathematical evidence: five of those 15 have been appointed by presidents who lost the popular vote and were approved by senators representing a minority of the people of the United States. (What this means, numerically, is that if the court were expanded to, say, 15 justices, a Democratic president who won the popular vote would still have only appointed 10 of the last 25 justices!) The GOP has gamed the system by holding vacancies open for Trump—and not only Scalia’s seat, but over 100 lower court vacancies, some of which were filled by people the American Bar Association (not exactly a liberal bastion) deemed to be “unqualified.” The GOP has undermined the legitimacy of the court and that legitimacy must be restored.

There was a time—not that long ago—when the approaches of justices to constitutional issues changed, matured, and deepened over time. Earl Warren was a prime example of that: he went from being known as a “law and order” Republican to the head of the most liberal—and I would argue most legally significant—SCOTUS bench in our history. Warren, for example, understood the importance of the court handing down the decision in Brown v. Board of Education unanimously, and he worked hard to ensure that the decision was, in fact, unanimous. William Brennan, probably the most influential liberal justice on that court, was an Eisenhower appointee. Harry Blackmun, appointed as a conservative by Richard Nixon, authored the opinion in Roe v. Wade and became increasingly liberal during his tenure. John Paul Stevens, appointed by Ford, moved from conservatism to being one of the most liberal justices on the court. David Souter, appointed with expectation that he would be a conservative, first moved to the center and then to the liberal wing of the court.  

All these justices saw the potential effect that their decisions in the cases before them would have on the lives of real people, and that openness and, dare I say it, empathy, made them take the side of real people. And it is stories like these, of thoughtful conservatives and conservative legal scholars growing and developing into liberal justices, that has made the GOP so determined to ensure that only right-wing ideologues are seated on the court. Has Clarence Thomas grown and developed since his appointment? (Hell, he’s hardly participated in oral arguments.) Did William Rehnquist? Has Samuel Alito? No, no, and no. Will Gorsuch, Kavanaugh, and Barrett grow and mature? Don’t bet the ranch.

Our unrelenting message must be that the GOP has, by its own insistence on the appointment of ideologues rather than open-minded jurists, undermined the legitimacy of SCOTUS; that the GOP has, by its manipulation of the appointment process for its own political ends, undermined the legitimacy of SCOTUS; and that this GOP “president” has, by ignoring the ruling of SCOTUS requiring the re-opening of registration for DACA, undermined the legitimacy (and authority) of SCOTUS. By these actions, the GOP has undermined the third branch of government, an independent judiciary, that is established in the Constitution that they pretend (word choice very intentional) to revere. It is up to us to point all this out, over and over and over again if necessary. It is up to us to make the case that the GOP has destroyed the impartiality of the third branch of our government. It is up to us to tell all comers that it is high time to rectify the destruction of the independent judiciary, and that we must act NOW. 

Democrats must get this message out there. The court, through the manipulations and political power plays of the GOP, is not—and the GOP does not intend it to be—a neutral arbiter. Despite John Roberts’ patently false claim that he will only call balls and strikes, the court is not a fair forum for the important cases it decides—just look at the shadow docket, in which unsigned per curiam orders have been used to decide, without opinion, cases affecting the right to vote and the way in which votes are counted. (Thank God for Sotomayor calling out the majority, even though, since they have no shame, it does not have any effect on their exercise of raw judicial power. At least we know what’s going on.)

These “conservative” justices have no problems with the worst, most abusive forms of judicial activism, like reading an entire clause or two out of the Second Amendment, or finding that corporations are “persons” and are entitled to protect their First Amendment rights and their political and religious beliefs, or finding that the Florida Supreme Court’s interpretation of Florida law as applied to a federal election was unconstitutional (Bush v. Gore, which they also tried to make into a non-precedent). They have no problem “distinguishing” precedents into meaninglessness—overruling them de facto if not de jure. The vast majority of cases decided by this court exalt the powerful, the white, law enforcement, or the religiously conservative over the poor, the disadvantaged, those who are members of minorities, the LGBTQ community, and those accused of crimes. 

And we need to be clear that time will not redress this problem anytime soon, which is why we must act now. 

Justices, with proper health care (which they have as federal employees) can serve well into their eighties. GOP presidents and senators have installed increasingly younger justices on the court. Without court expansion, it is unlikely that Biden will get more than one appointment during a 2021-2025 presidential term. That is because the only justice over 80 is Stephen Breyer, at 82. That one appointment will not affect the 6-3 conservative majority on the court, because a “liberal” would be replacing a “liberal.”

If the other justices serve until Breyer’s current age, here is when their seats would turn over:

  • Clarence Thomas, at 72, would not leave the court until 2030.
  • Alito, at 70, would depart in 2032.
  • Sotomayor, at 66, would leave in 2036.
  • Roberts, at 65, would leave in 2037.
  • Kagan, at 60, would leave in 2042.
  • Kavanaugh, at 55, would leave in 2047.
  • Gorsuch, at 53, would leave in 2049.
  • Barrett, at 48, would not leave the bench until 2054.

If we leave the number of seats at nine, this means that, absent unforeseen early deaths of some of the conservative justices, there is not a realistic opportunity for a change from a conservative-dominated court to a more liberal court until—are you ready for it?—2032! And that is based on the assumption that Democratic presidents would be in office and control the Senate when every single vacancy arises between now and then. That’s 12 more years of a conservative-dominated court—and that’s a best-case scenario. Twelve years of a court striking down statutes ensuring that people have the right to vote. Twelve more years of a court striking down laws that give access to health care. Twelve more years of a court striking down the very concept of reproductive rights. Twelve more years of a court giving a pass to corporations, underhanded prosecutors, and violent police officers. Twelve more years of a court allowing the GOP to gerrymander the hell out of every single district, state or federal, that they can.

The court, as an institution, must be expanded in order to reduce the importance and power of the constitutional interpretation mechanisms of individual justices. Sure, if there are 15 justices there will be a few 8-7 decisions, but there will be far, far fewer of them than there are 5-4 decisions currently. (Eighty-four of which in the past decade have favored corporations, limiting their liability and responsibility for their actions.)

Having argued cases for many years, before juries over the selection of which I had limited power, I believe that a majority of Americans can and will understand what is going on if it is clearly and effectively communicated to them. I believe that a majority would respond to this rationale and support the expansion of the court. (Trumpies won’t, but they are legal lost causes.) We Democrats need to do what the GOP does: develop talking points and relentlessly pound them whenever the chance arises—or, being even more like the GOP, pounding them even when they are not responsive to a question. 

This is a case we must make to the jury of the American public, and it is a case we must win if our civil rights are to be preserved. It is a case we must win to end minority rule in this country. It is a case we must win to ensure the survival of our democracy through the upholding, indeed expansion, of voting rights.

Am I angry about what has been done to SCOTUS? Damn right, I’m angry. And we need to get others to share that anger, especially as each new decision chipping away at (or blasting away) our rights is handed down.

Take no prisoners.

Trump used his campaign war chest like an ATM. Now it’s dead broke and GOP donors are furious

Suckers. That's clearly how major GOP donors feel after realizing that Trump's campaign is basically dead broke, he's dragging down the entire party, and he's even put Democrats in position to potentially take back the Senate

“The Senate majority is the most important objective right now,” said Dan Eberhart, who has given over $190,000 to Trump’s reelection effort, according to the AP. “It’s the bulwark against so much bad policy that the Democrats want to do if they sweep the elections.”

Let’s give Senate Republicans the boot! Give $2 right now for some epic satisfaction on election night.

Eberhart and others feel burned after the state of Trump's campaign war chest has come into clearer view in the final months of the race. Some Republicans donors even founded a separate pro-Trump super PAC, Preserve America, that was explicitly not run by Trump's people because he's clearly not sending his finest. Republican megadonor Sheldon Adelson recently poured $75 million into that PAC instead of just handing it over to the Trump campaign. 

“You could literally have 10 monkeys with flamethrowers go after the money, and they wouldn’t have burned through it as stupidly,” veteran GOP strategist Mike Murphy told the AP of the Trump campaign's spending habits. 

On the one hand, the Biden campaign is spending more than twice as much in the closing days of race—$142 million to the Trump campaign's coordinated buy with the Republican National Committee (RNC) of $55 million. On the other, Trump and his campaign aides burned through $1 billion like they were on a drunken Beverly Hills lifestyles-of-the-rich-and-famous bender. 

There's the already reported $10 million Super Bowl ad bought by the campaign so Trump could feel powerful before Democrats had even settled on a nominee. There's also more than $310 million in spending that's concealed by a web of limited liability companies, notes the AP. And somehow, former Trump campaign manager Brad Parscale managed to purchase a Ferrari, a Range Rover, a $400,000 yacht, and several million-dollar-plus condos after siphoning some $40 million from the Trump campaign alone. 

But really, that's just the tip of the iceberg. Here're some other choice purchases made by the Trump camp and RNC, according to the AP:

— Nearly $100,000 to prop up the release of Donald Trump Jr.’s book, “Triggered,” pushing it to the top of The New York Times’ bestsellers list.

— Over $7.4 million spent at Trump-branded properties since 2017

— At least $35.2 million spent on Trump merchandise

— $38.7 million in legal and “compliance” fees, including the legal costs of his impeachment proceedings

— At least $14.1 million spent on the Republican National Convention, which was relocated several times and ended up being a mostly virtual event

— A $250,000 ad run during Game 7 of the 2019 World Series after Trump was booed by spectators for attending Game 5

— $1.6 million on TV ads so Trump could see himself in the Washington, D.C., media market, where Biden is polling at about 87%

Perhaps the best strategic decision was back in May, when Parscale unleashed $176 million in spending to drag down Biden in public polling. That worked out well. 

Giuliani’s smear on Hunter Biden is so ridiculous, Fox News passed on it … then covered it 24/7

Once upon a time—also know as 2019—Donald Trump tried to blackmail the president of Ukraine into making false claims about Hunter Biden. Trump got caught, got impeached, and got not even a slap on the wrist from Senate Republicans who were willing to allow Trump to do anything in exchange for a flood of conservative judges. After all, when you’ve already waved off the Hatch Act, ignored federal laws over nepotism, and blown off an endless stream of lies … what’s a little extortion of an ally for political advantage?

When Trump didn’t get what he wanted from from Volodymyr Zelensky, he put both U.S. Attorney General Bill Barr and Rudy Giuliani on the case. Barr grabbed U.S. attorney John Durham and opened up an investigation that saw him flying around the world in an attempt to find someone reputable who would lend the slightest credence to Trump’s incredible claims. Giuliani … just skipped out on the “reputable.” Instead, he grabbed a pair of foot soldiers for a Russian oligarch, latched onto some officials who had been kicked out for corruption, and worked directly with an “active Russian agent” to produce a whole series of false claims and fake evidence. 

That brings us to now. Barr’s efforts have apparently come up dry. One part of his investigation has already shut down, Durham’s top assistant has resigned, and there’s no report worth even a patently false summary before Election Day. The Giuliani side has produced a hard drive. A hard drive supposedly dropped off in Delaware by a man who lived in California, at a shop owned by a vocal Trump supporter, where the security footage was mysteriously wiped, the blind shop owner could not identify the person who dropped it off, there was no name or contact information provided, and no one ever returned for it. 

Giuliani’s story is so ridiculous that both Fox News and the New York Post reporter who was forced to write it both disowned it. After years of trying to smear Biden, this really is the best they can do.

As Mediaite reports, the New York Post was hardly Giuliani’s first choice in trying to get this contemptible last-ditch effort into the media. It’s unclear how many other places he went first, but it is clear that he came to Fox News with his story of an unclaimed laptop. Fox News looked at the story, got out their 10-foot pole, and carefully pushed the whole pile back to Giuliani.

After all, this is far from the first time that Giuliani has come up with supposedly shocking information that just happens to support Trump’s every delusional claim. In September, it became clear that Giuliani was working closely with U.S. Sec. of State Mike Pompeo. It’s since come out that the packet of information that Pompeo shared with Republican lawmakers, but not with Democrats, did not come from sources within the State Department. He was simply laundering pages for Giuliani. Naturally, Trump’s personal attorney could not stop bragging about this. At the start of October, he told CNN that he was the source for the Biden information in Republican’s hands. 

This information was enough that Louie Gohmert and Paul Gosar, DDS were willing to scrawl their signatures on a letter to the Justice Department, along with nine other Republicans out of 250 in the House and Senate. But the many, many places where the Giuliani’s claims weren’t just wholly unbelievable but clearly connected to a known Republican disinformation campaign against Biden did bother a few other people.  

Not only is there the little problem of there being absolutely no provenance concerning the hard drive itself—everything about the story of where it was found has holes the size of ocean liners. The shop owner has given various accounts about how the laptop (or laptops, since he at one point claimed there were three), entered his shop; he’s been completely contradictory about how it came to the attention of the FBI; and when and how Giuliani became involved in the affair is as clear as mud. Also, there’s a little matter of how dates on the files found on the machine seem to be from months after the machine was supposedly dropped off.

But just because Fox News wouldn’t take it directly, that doesn’t mean that Rupert Murdoch wasn’t willing to step in to help out his pals. After the story was turned away from Fox News, it was shuffled over to the Murdoch-owned paper where New York Times reports reporter Bruce Golding was tasked with taking the documents, and Giuliani’s ravings, and turning them into an article. But once he heard the whole tale, Golding refused to put his name to the piece. So did other journalists in the Post news room … and this is a paper that just last year went with a front page emblazoned “Bezos exposes Pecker.”

Instead, the story eventually ran under the byline of Emma-Jo Morris. Morris is a former booker for Sean Hannity’s show on Fox, who made the trip across to the Post just in time for Giuliani’s Russian fabrication to be her very first article. A second name on the article was Post reporter Gabrielle Fonrouge. Fonrouge’s name ended up there in the most efficient manner. The Post’s editors put it there, and didn’t tell Fonrouge until after it was published.

All of this works perfectly for Fox, for the Post, for Giuliani, for Trump, and most importantly, for Putin. Fox doesn’t have to front the story. With the story in the Post, Fox can report on it. They can ask Republicans to comment on it. They can construct great rambling opinions from Tucker Carlson and Sean Hannity. The Post can then report on the comments their story is getting on Fox. Trump can retweet it all. Republicans in the House can cite all of the above as justification for demanding William Barr whip up a special investigator. And Vladimir Putin … can laugh. 

Fascism: As polling turns against him, Trump lays groundwork for mass violence

Rattled by poor polling numbers in his reelection bid, the alleged president of the United States is encouraging domestic terrorism. That's where we're at, and everyone from top national security experts to local emergency officials are all crystal clear on that. The New York Times reports from a bunch of 'em in a piece that can both contain remarkable factual phrases like "Mr. Trump has descended into rants about perceived enemies" and still somehow soft sell the underlying message:

The nation is preparing for violence on and after Election Day because Donald J. Trump, a fascist, is goading his supporters into that violence with rally claims that any loss on his part will be proof that his enemies cheated.

There is no possible chance that Trump doesn't know what he's doing. His tweeted calls to "LIBERATE" states from governors who imposed widespread pandemic measures resulted in a Michigan militia attempting to do exactly that. Trump is back at it even today, claiming their primary target, Michigan Gov. Gretchen Whitmer, "wants to be a dictator." He is attaching the legitimacy of the state to calls for mob action—only to repeat those calls when it looks like the first versions are beginning to bear fruit.

The only reason he is not being treated as a radical, dangerous figure who has irreparably violated his own oath of office, necessitating removal, is because Republican Party leadership and lawmakers have themselves embraced and defended those violations. It is self-radicalizing; the farther Trump goes into overtly authoritarian behavior, the more pressure the party feels to defend and normalize their own support for him. The more Trump's circle has succeeded in isolating and excising state and local functionaries who express alarm at his grotesqueries, the more the party has become a homogenized group of anti-democracy, authoritarian-molded radicals themselves.

Trump has clearly been unfit for office in every respect; the impeachment investigation identified his corruption, the pandemic proved his apathetic incompetence, and his continued calls for mob justice against targeted enemies have proven (as have similar quotes repeated through the last five years) that he is not just indifferent to extralegal punishments of his enemies, but publicly fantasizes about them. If Vice President Mike Pence, Sen. Mitch McConnell, Attorney General William Barr, Treasury Sec. Steve Mnuchin, Sec. of State Mike Pompeo, Rep. Mark Meadows, Sen. Lindsey Graham, Sen. Ted Cruz, and the entire rest of the party had not all decided to ally with him for their own ideological and policy ends, he would have been removed in bipartisan fashion long ago, reduced to a historical footnote.

They didn't, and now local law enforcement officials around the country are preparing for radicals among what Trump has proudly designated his "Army" intent on disrupting Election Day, sabotaging ballot-counting measures, and committing acts of coordinated terrorism targeting his opponents. It's now expected.

Once again we're in a position where the fate of democracy rests on not just beating anti-democratic forces, but doing so in such a convincing fashion that sabotage can't alter the outcome. But now it comes with the near certainty of violence. This is Mitch McConnell's fault: Remember that. This is Lindsey Graham's fault. Mike Pence, Kellyanne Conway, William Barr. Trump's suggestions to "liberate" parts of America from small-d democratic governance would be intolerable if they believed them to be intolerable. Everything Trump does and will do has happened because they allowed it.

California Republican Party says it won’t take down illegal ‘ballot boxes’ despite state orders

On Monday, it came to light that the California Republican Party was placing what they called "official ballot drop off boxes" in locations deemed to be Republican-friendly (such as, no kidding, "gun stores") in apparent efforts to make it easier for Republican voters to vote than not-Republican voters.

There are two problems with this. First: It's not legal. California law allows voters to designate a person to drop their ballot off at an official location rather than going themselves; it does not allow the "designated person" to be an unattended cardboard box. (And yes, some of the "official ballot drop off boxes" are merely "simple cardboard boxes with no locking security mechanism.")

The second problem is, yes, ballot security. Voters may not be aware that these very much not official "drop off boxes" are managed by unknown Republican operatives, and there's no guarantee the ballots collected in such boxes won't "accidentally" be, to use a recent Trumpian example, dumped into a river. (I kid. Here in California we don't have rivers. They could be dumped into storm drains, though, which would be problematic because all the aspiring sewer actors do not need more lines to practice.) There's nothing to say the ballots the Republican Party claims to be collecting won't be sorted through, perhaps to weed out non-Republican looking names, or otherwise disposed of. That's why California ballot-harvesting laws require a designee.

California officials have now warned the state Republican Party that what they're doing is illegal and may even result in prison time. The Republican Party has responded in the expected way: They don't care, and won't be complying with state demands to remove the boxes.

More specifically, the California Republican Party intends to continue the operation while daring state officials to do anything about it. Party spokesperson Hector Barajas noted that a 2018 state law prohibits election officials from rejecting a ballot solely because it was returned without the required designee signature or relationship to the voter, signaling that the party intends to collect ballots however they want, handle and turn them in however they want, and dare election officials to throw those votes away. Election officials will almost certainly not do that, so here we are.

It's another case of the party's all-encompassing insistence that laws don't matter if bending the law would benefit the party. See also: Dinesh D'Whateverguy, and literally every member of Donald Trump's inner circles, past and present, indicted and not, and the Republican gutting of the Federal Election Commission, and the nullification of election-related impeachment charges against Dear Leader, and take your pick.

And yes, everyone involved is aware of the dichotomy of the Republican Party going to furious lengths to restrict voting access in Texas and other Republican-led states while bending restrictions that they believe are harmful to their own voters. It's not irony, it's fascism.

What California voters need to know right now, however: Do not use those boxes. Don't. California is mailing ballots to all voters; follow the instructions provided to the letter and mail them back. Do not put your ballot in a cardboard box, or a burlap sack, or into the mouth of a large wooden horse that has appeared, overnight, in the empty parking lot of an abandoned mall. Just mail them in, or turn them in where the state itself tells you to.

There's no guarantee that the local Chuckles' Gun Club and Shoebox Votin' Booth will be handling your vote, as America decides between authoritarian rule and democracy, with anything resembling care. The Republican Party is playing fast and loose with the votes of their own most loyal supporters, and that is not something you want to get involved in.

Pelosi and team are preparing for the eventuality that the House has to decide the election

The putrid heap of orange-tinted lard in the White House will do everything in his power to stay there after Jan. 20, 2021. That includes installing a Supreme Court justice with experience in stealing presidential elections. While the Senate Democrats are still grappling with that particular issue, House Democrats are working on how they're respond to various scenarios, including the scariest: a for-real, legitimate tied electoral vote should that happen.

This is about being prepared for the worst, so don't panic or anything because Trump's polling is still very, very bad for him. But with minority rule being the norm in American governance, it's not impossible that we end up with a tied electoral college. That's what led House Speaker Nancy Pelosi to start mobilizing her team with a letter sent Sunday reminding them of the House's responsibility and what they need to do now. Which is basically make sure Democrats win House races in hopes of flipping a few delegations.

It hasn't happened since 1876, but here's how it works in the event of a tie: Each state's delegation gets a single vote. That means holding a majority of state delegations in the chamber. Despite the fact that there are 232 Democrats and 198 Republicans, Republicans still have the delegation edge—all those at-large and one to three member rural red states represented by Republicans have given them a 26-22 edge. So here we go again, the popular vote loser, the candidate that is in opposition to the ruling majority in the House, could still get the majority of votes in the warped Congress and take it all.

"The Constitution says that a candidate must receive a majority of the state delegations to win," Pelosi wrote. "We must achieve that majority of delegations or keep the Republicans from doing so." There are some very close states. Pennsylvania is tied, with nine Democratic seats and nine Republican. Michigan is barely Democratic, seven to six with independent Justin Amash holding the 14th seat there. He's retiring and is likely to be replaced by a Republican. Every single seat matters more than ever this cycle, even though Democrats will easily retain the House.

They need seats to flip, but they need seats where they also get the state delegation. Two they're eyeing right now are Montana's and Alaska's. They're at-large seats, where there's just one seat for the entire state. Our Daily Kos elections team just moved Montana from Likely R to Lean R, with Democratic challenger Kathleen Williams holding a 46-44 edge in the polling average. In Alaska, Democrats are looking the Alyse Galvin to unseat the longest serving member of Congress, Don Young. Galvin is a registered independent, but gained the challenger's spot in the state, which allows independents to contest in party primaries. In 2018, she gave Young the toughest challenge he's had in three decades, getting 46.5% of the vote.

Other than those flips, it's about consolidating seats in close delegations and defending swing state seats. Democrats have a one- or two-vote seat advantage in seven states where they have to make sure vulnerable members stay safe: Arizona (Democratic edge 5-4), Iowa (Democratic edge 3-1), Maine (2 Democrats), Minnesota (4-3 Democratic edge), Nevada (3-1 Democratic edge), and New Hampshire (2 Democrats). Florida has a one-seat Republican advantage, 14 to Democrats' 13. The Alaska and Montana at-large seats are held by Republicans, meaning a Democrat would change the delegation’s vote in a presidential tally.

"We're trying to win every seat in America, but there are obviously some places where a congressional district is even more important than just getting the member into the U.S. House of Representatives," Rep. Jamie Raskin, a Maryland Democrat and constitutional lawyer, told Politico. This means that Democrats are not just focusing on protecting vulnerable Democrats, but expanding the map.

If House Democrats are preparing for this eventuality, you can be sure that they are gaming out other possible challenges Trump will bring. It’s a balancing act for Pelosi, realizing she has to both combat Trump—she even obliquely threatened a potential second impeachment effort to gum up Senate works and prevent a rushed Supreme Court appointment—and not rocking the boat so much she could tip vulnerable Democrats in those key delegations overboard.

Trump refusing to leave office is not a fantasy, because he’s doing everything to make it real

Our old friend the Fascism Watch hit midnight eight months ago as Senate Republicans affirmed that there was no crime for which they were willing to hold Donald Trump responsible. Despite Trump’s using his high office to extort a foreign nation into providing lies against a political opponent in exchange for desperately needed military aid, the Senate dismissed the idea of calling even a single witness. The disdain they demonstrated then is being repeated now as multiple senators not only reverse their previous “principled stand,” but declare that they will support Trump’s Supreme Court nominee before they even know the identity of that nominee.

In 2016, the idea that Trump might refuse to respect the outcome of the election was treated as a fringe position. In 2020, the idea that Trump might hold onto power no matter what the results at the polls is still being treated as something that isn’t worth consideration. But it demands to be taken seriously, not as a wild idea, but a possible—even probable—outcome.

The question now is not: “Would Donald Trump cheat to hold onto power?” Because that question has been asked and answered almost every day of the last four years. The question now is: “Why would Trump not cheat to maintain his grip on the nation?” And there may be no good answer.

Campaign Action

Four years ago, the Republican Party made a pretense of being against the racism, xenophobia, misogyny, and authoritarianism of Donald Trump. Then one by one, they bent the knee. They have made it clear that their loyalty lies not with principle or party, and certainly not with nation. They’ve laid their personal fealty with Trump and Trump alone. For them, there is no going back.

The same Republicans who gave Trump a pass on impeachment, the same Republicans who declared their willingness to trample their own statements in support of Trump’s Supreme Court nominee, the same Republicans whose control of the Senate is also on the cusp … have exactly zero interest in “doing the right thing.” Even before Trump, Sen. Mitch McConnell discovered that the Constitution was subject to a complete end-around run by anyone willing to put their morality and concern for the nation on a shelf. Not only do they have no incentive to prevent Trump from stealing the election, they have every incentive to help.

With the Senate in his pocket, Trump has been preparing his followers for the rejection of the poll results for months. As Mother Jones points out, destroying faith in voting-by-mail has been an essential part of laying the foundation on which Trump can create claims of an invalid election. 

It’s not difficult to imagine an Election Day scenario in which Trump prematurely declares victory based on his lead among in-person votes, which are quicker to tally than mail-in votes in many states and are expected to lean more Republican. Trump then seeks to invalidate the mail-in ballots that favor Democrats before they’re counted.

This leads to an all-too-possible scenario in which Republican state legislatures either vote to reject mail-in ballots outright, or rule that the vote on the election night is the only “real” vote. Attempts to appeal these decisions in court then roll inexorably upward to a Supreme Court where Trump’s latest appointee joins with Alito, Thomas, Gorsuch, and Kavanaugh to install Trump for a second term—without even necessitating a “swing vote” from John Roberts. Trump continues a string of victory rallies as he prepares to hold up his hand again on Jan. 20.

Should there be protests (and there would be), Trump has also been preparing his followers for that moment. In Portland, Oregon, and in the streets of Washington, D.C., Trump has demonstrated an ability to deploy forces that are more than willing to use chemical weapons and deadly force against even peaceful protesters. He has spent months telling his followers that “Democrat-run” cities are hopeless cesspits that deserve to burn. Fox News has done everything possible to expand on that image of anarchy that needs a hard kick.

Even if the Army and National Guard decided to sit on their hands when Trump calls—and he would call—Trump and Attorney General William Barr have already demonstrated an ability to scoop up thousands of paramilitary forces from executive agencies that are more than willing to literally bust heads for Trump. That’s not even counting the Trump supporters who are willing to bring their own guns in to Rittenhouse the unarmed, a position that Fox News is now busy buffing up to superhero status.

Trump is a guy who always wants things to be “rougher.” Always wants the police to be “tougher.” Who hasn’t hesitated to call his political opponents “traitors” or to call for the death of people who have not faced trial. No matter what the outcome, why would he not use force to hold onto power?

As The Atlantic points out, this threat is much greater than most people are allowing. 

A lot of people, including Joe Biden, the Democratic Party nominee, have mis­conceived the nature of the threat. They frame it as a concern, unthinkable for presidents past, that Trump might refuse to vacate the Oval Office if he loses. They generally conclude, as Biden has, that in that event the proper authorities “will escort him from the White House with great dispatch.”

But that scenario suggests that a defeated Trump pouts in his office and waits for his exit escort to arrive. Trump could just as easily—and perhaps, more likely—simply declare the election invalid. Fox News would certainly back him. Republicans in the House and Senate might take a minute to check the wind direction before joining in. Maybe two hours. Then they would be all in. Trump could put up a front of appealing the outcome in court while Republicans launched “investigations of massive voting fraud” in the Senate. But it would all be for show.

This isn’t a nightmare scenario … or rather, it is a nightmare. It’s just one that Trump’s teams are working to make real. They are already putting in place the legal groundwork and public perception to appeal any outcome unfavorable to Trump. As Mother Jones notes: “The question won’t be whether American democracy can survive Trump. We’ll already know that it hasn’t.”

All that remains to find out is whether democracy can be renewed. For that to happen, everyone needs to go into this election with their eyes open, knowing that the more decisive Trump’s loss, the less likely he is to be successful in his all but certain attempts to deny that defeat. Everyone is going to need to work like hell to get as many people to the polls as possible on Election Day, to see that mail-in ballots are counted, and to hold responsible every official, at every level, who gets in the way of allowing people’s votes to be counted.

You can’t push back a threat if you won’t admit it’s real, and you better not go into a fight without a plan. Donald Trump will absolutely cheat to hold onto power. He’s demonstrated that again and again. He’s been impeached for it. He will not stop now. And everyone, including Joe Biden, better have a plan for what to do when it happens.

Romney makes up new ‘precedent’ to say he’ll vote on a Trump Supreme Court nominee

Sen. Willard Mitt Romney, the Republican from Utah who broke ranks with Republicans to vote to convict Donald Trump on one of the articles of impeachment, abuse of power, has snapped back into line when it matters most: a Trump Supreme Court nominee. He says his decision isn’t based on “a subjective test of ‘fairness’ which, like beauty, is in the eye of the beholder,” but on “the Constitution and precedent.” And then makes up some real bullshit on precedent: "The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own." Except for when a Democratic Senate confirmed Ronald Reagan’s nominee, Anthony Kennedy, in 1988. 

“The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own,” he says. Historical precedent set by Mitch McConnell in 2016 in order to steal a Supreme Court seat from President Barack Obama. Maybe in the future we’ll have to call it the Romney Doctrine, just to cement for history how pathetic he is. 

This means McConnell has the votes. He doesn’t know (supposedly) the nominee yet, but he’s got the votes. It’s worth noting that he’s been sitting on the HEROES Act coronavirus relief bill for four months without acting, but will try to push a Supreme Court nominee in five weeks. It means that Sen. Susan Collins now has permission from McConnell to vote against the nominee, if she thinks that will save her pathetic political skin, because he doesn’t need her vote. It will be too little, too late for Collins, but that’s what will happen. 

It's about saving the country. Simple as that. Donate now to help bring it back to the White House and Senate.

David Frum: Don’t assume McConnell has the votes to confirm

Last night and this morning, I felt like crawling into a hole for the next 40 days or so. And not a deep hole. I didn’t have the energy or joie de vivre for a deep hole. It would have been a shallow hole. Barely a hole at all. Really, I would have just lay down in the dirt until my DNA fused to the worms’ and slugs’ and grasses’ much more upbeat genetic material.

But I’m a more resilient guy ever since I got into therapy and on antidepressants (I recommend both if you’re struggling). And this morning a friend sent me this Atlantic story from former George W. Bush speechwriter and confirmed NeverTrumper David Frum.

He makes some excellent points (one of them being, don't swallow your tongue in abject, pants-shitting fear just yet):

What McConnell did in 2016 was an assertion of brute power, and what he proposes in 2020 is another assertion of brute power. And so the question arises: Does McConnell in fact have the power he asserts?

The answer may be no, for four reasons.

Do tell, David Frum:

The polls do not favor Susan Collins, Cory Gardner, or Thom Tillis—senators from Maine, Colorado, and North Carolina up for reelection this cycle. Yet these competitors may not be ready to attend their own funerals. They may regard voting against McConnell's Court grab as a heaven-sent chance to prove their independence from an unpopular president—and to thereby save their own seats.

Lisa Murkowski of Alaska has also made skeptical noises, and even Lindsey Graham of South Carolina may flinch. He faces an unexpectedly tough race this year, and he is extra-emphatically on the record vowing not to support a Supreme Court confirmation vote in the later part of a presidential year.

Frum also asks if Trump can find a woman nominee (Trump almost needs to nominate a woman to replace the legendary RBG, lest his female support erode even further) at the 11th hour who will be viewed as moderate enough by the senators who could be thinking of defecting.

Any last-minute Trump nominee will face a gantlet of opposition in the Senate, a firestorm of opposition in the country, and probably a lifetime of suspicion from the majority of the country.

Can McConnell and Trump find an appointee willing to risk all that for the chance—but not the guarantee—of a Supreme Court seat? Specifically, can they find a woman willing to do it? The optics of replacing Ginsburg with a man may be too ugly even for the Trump administration. And if they can find a woman, can they find a woman sufficiently moderate-seeming to provide cover to anxious senators? The task may prove harder than immediately assumed.

In addition, Yertle the Asshole’s hypocrisy on this issue is so egregiously off the charts it might create a mutually assured destruction scenario in which Democrats (assuming Biden wins and Dems retake the Senate) feel justified in packing the court by, say, adding two more justices.

But a last-minute overreach by McConnell could seem so illegitimate to Democrats as to justify radical countermoves should they win in November: increasing the number of appellate judges and Supreme Court justices; conceivably even opening impeachment hearings against Justice Brett Kavanaugh.

McConnell may want the win badly enough to dismiss those risks. But many conservative-leaning lawyers in the country may be more cautious. And their voices will get a hearing in a contentious nomination fight—not only by the national media, but by some of the less Trump-y Republican senators. This could be enough to slow down a process that has no time to spare.

I think Frum makes some great points, and anything that will keep me from reaching for the shovel is welcome news right now.

So let’s breathe, and keep fighting on.

A Democratic Senate has never been more important. Make it so.

“This guy is a natural. Sometimes I laugh so hard I cry." — Bette Midler on Aldous J. Pennyfarthing, via TwitterFind out what made dear Bette break up. Dear F*cking Lunatic: 101 Obscenely Rude Letters to Donald Trump and its boffo sequels Dear Pr*sident A**clown: 101 More Rude Letters to Donald Trump and Dear F*cking Moron: 101 More Letters to Donald Trump by Aldous J. Pennyfarthing are now available for a song! Click those links, yo!

Barr makes it clear—again—that he intends to drop the Durham report before the election

On July 28, Attorney General William Barr appeared before the House Judiciary Committee. During a half-day of questioning in which Barr was repeatedly evasive or purposely intended to misunderstand questions, there was one answer he provided which was absolutely clear. When Florida Rep. Debbie Mucarsel-Powell asked Barr to commit that the conspiracy theory-based report being prepared by John Durham would not be released before the November election, Barr’s answer could not have been briefer. “No,” he said.

Barr has made it absolutely clear that he does intend to deliver an October surprise. Ever since he stepped back onto the national stage by purposely distorting the results of the Mueller investigation, Trump’s new Roy Cohn has been engaged in politicizing the DOJ and turning the department into an wing of Trump’s reelection campaign. One of his first acts was drafting U.S. Attorney John "Bull" Durham to begin a round-the-world quest into claims Trump had made against Joe Biden, the pursuit of a DNC server that never existed, and undermining the actions of his own department in the Trump-Russia investigation. 

And now, as the campaign enters its final two months, Barr is being equally clear that he’s ready to ignore the Justice Department's “60-day rule” against taking overtly political steps in the final weeks before an election.

As Trump continues to show that he will say anything, Barr continues to make it equally clear that he will do anything to back up Trump’s statements and actions. As CNN notes, Barr was aggressively belligerent in a Wednesday night interview, making it clear that he is more than willing to break the 60-day rule, or any other rule, if that’s what it takes to keep Trump planted in the White House.

Barr wasn’t just unwilling to agree that Durham’s international quest for lies wouldn’t be packaged up for release before November 3, he was all in on Trump’s statements about how mail-in ballots lead to fraud. These were especially egregious statements coming from an official charged with keeping the elections safe and who knows that there is no evidence backing such claims.

CNN: "You've said you're worried a foreign country could send thousands of fake ballots ... what are you basing that on?"

Barr: "Logic."

CNN: "But have you seen any evidence?" 

Barr: “No.”

But Barr doesn’t seem to need any evidence. Or rules.

Because in the CNN interview, he repeated that he doesn’t believe the 60-day rule applies to the Durham investigation. "I will handle these cases as appropriate,” said Barr, “and I do not think anything we do in the Durham investigation is going to be affecting the election."

Of course not. Just because Barr accompanied Durham to Rome where he tried to convince Italian authorities to join him in claims that professor Joseph Mifsud was secretly a CIA plant put in place months in advance to snare Trump adviser George Papadopoulos into trying to make contact with Russian officials, doesn’t mean there’s anything political about the investigation. Just because Barr was already secretly working with Durham at the time he redacted the Mueller report. Just because Barr and Durham dropped in on Australian intelligence and unsuccessfully tried to get them to agree that that Australian official Alexander Downer planted false evidence against Carter Page. Just because Barr has made it absolutely clear that the Durham investigation is “broad in scope and multifaceted” including trying find some basis behind the Ukraine fantasy behind Trump’s impeachment—a conspiracy aimed directly at generating false evidence against Joe Biden … none of that makes it political.

What’s clear from everything that’s been learned about Durham’s investigation is that it’s been spectacularly unsuccessful. Barr and Durham didn’t get Italy to lie for them about Mifsud. They couldn’t get Australia to lie for them about Downer. And the heads of both MI5 and MI6 in the U.K. refused to play along with their claims about Joe Biden’s actions in Ukraine. The only actual charge to come out of the investigation so far is a single count of altering an email against decidedly third-tier figure and former FBI attorney Kevin Clinesmith. And the truth is that Clinesmith’s actions weren’t discovered by Durham at all—they were included in the report prepared by DOJ Inspector General Michael Horowitz last December.

To date, it appears the Durham investigation has turned up exactly nothing that wasn’t previously known, and has completely struck out when it comes to trying to fulfill Trump’s conspiracy fantasies. However, none of that will stop William Barr from issuing a deliberately confusing last-minute memo designed to present things in a completely upside-down manner. After all, that’s his speciality.