Letter From An American by Heather Cox Richardson

  October 14, 2020 (Wednesday)

Today began with a breathless story from the tabloid paper the New York Post alleging that, according to Trump’s lawyer Rudy Giuliani, Joe Biden’s son, Hunter Biden, had dropped off three laptops for repair in 2019 and had never picked them up again, and that the FBI subpoenaed the hard drives, but before turning them over the repairman had made a copy of the material on them, and he gave it to Giuliani, and it had incriminating material on it….

And yes, it’s as ridiculous as it sounds. Over the course of the day, real journalists have demolished the story, but it is still of note as news because of what its timing might mean.

First of all, the Trump campaign is in trouble. Polls show the president down by significant numbers, and the voters he has been trying to suppress are turning out in droves. Today Massachusetts Governor Charlie Baker, a Republican, issued a statement saying he “cannot support Donald Trump for President,” and the Biden campaign announced that it raised an eye-popping $383 million in September alone, a historic record which comes on top of the historic record of $364.5 million it set in August. This means Biden has $432 million on hand for the last month of the election. Dumping a story like this Hunter Biden fiction in a tabloid, which has wide reach among low-information voters, is a cheap fix for the Trump campaign. It might shore him up among those who will never see the wide debunking of the story.

Second, though, the timing of the story suggests it was designed to distract from the third and final day of Amy Coney Barrett’s testimony before the Senate Judiciary Committee in her hearing for confirmation to the U.S. Supreme Court. The hearings have not been going particularly well for the Republicans. They have the votes to confirm her, and confirm her they will, but her insistence that she is an “originalist,” along with her refusal to answer any questions on topics relevant to the present, including on racial prejudice, climate change, voter suppression, and so on, have made her extremism clear.

Democrats have hammered home that putting Barrett on the court at this moment is an extraordinary power grab, and voters seem to agree. Turning attention away from the hearings would be useful for the Republicans when voters are on their way to the polls.

And yet, Republicans are determined to force her appointment through, even though it threatens to delegitimize the Supreme Court.  

To what end?

The originalism of scholars like Barrett is an answer to the judges who, in the years after World War Two, interpreted the law to make American democracy live up to its principles, making all Americans equal before the law. With the New Deal in the 1930s, the Democrats under Franklin Delano Roosevelt had set out to level the economic playing field between the wealthy and ordinary Americans. They regulated business, provided a basic social safety net, and promoted infrastructure.

After the war, under Chief Justice Earl Warren, a Republican appointed by President Dwight Eisenhower, the Supreme Court tried to level the social playing field between Americans through the justices' interpretation of the law. They tried to end segregation through decisions like the 1954 Brown v. Board of Education of Topeka, Kansas, which prohibited racial segregation in public schools. They protected the rights of accused prisoners to legal counsel, and the right of married couples to use contraception in 1965 (it had previously been illegal). They legalized interracial marriage in 1967. In 1973, they tried to give women control over their own reproduction by legalizing abortion with the Roe v. Wade decision.

The focus of the Supreme Court in these years was not simply on equality before the law. The justices also set out to make the government more responsible to its citizens. It required that electoral districts be roughly equal in population, so that a state could not have one district of a few hundred people with another with a hundred thousand, thus establishing the principle of “one man, one vote.”

These were not partisan decisions, or to the degree they were, they were endorsed primarily by Republicans. The Chief Justices of the Court during these years were Republicans Earl Warren and Warren Burger.

Today’s “originalists” are trying to erase this whole era of legislation and legal decisions. They argue that justices who expanded civil rights and democratic principles were engaging in “judicial activism,” taking away from voters the right to make their own decisions about how society should work. They say that justices in this era, and those like them in the present—people like Ruth Bader Ginsburg, who protected women’s equality before the law-- were “legislating from the bench.” They hold tight to the argument that the Constitution is limited by the views of the Founders, and that the government can do nothing that is not explicitly written in that 1787 document.

Their desire to roll back the changes of the modern era serves traditional concepts of society and evangelical religion, of course, but it also serves a radical capitalism. If the government is as limited as they say, it cannot protect the rights of minorities or women. But it also cannot regulate business. It cannot provide a social safety net, or promote infrastructure, things that cost tax dollars and, in the case of infrastructure, take lucrative opportunities from private businesses. In short, under the theory of originalism, the government cannot do anything to rein in corporations or the very wealthy.

As Senator Sheldon Whitehouse (D-RI), who is a member of the Senate Judiciary Committee, illustrated in careful detail at the Barrett hearings yesterday, it is no accident that Barrett’s nomination has the support of secret dark money donors. She will be the key vote to having a solid pro-corporate Supreme Court.

The Trump administration has made it clear that it favors private interests over public ones, combatting regulation and welfare programs, as well as calling for private companies to take over public enterprises like the United States Postal Service. But the New Deal government and the rights enshrined by the Warren and Burger courts are popular in America, so it is imperative for today’s radical Republicans that the courts cement their reworking of the country.

Former White House Counsel Don McGahn explained that the Trump administration wants to skew the judiciary to support its economic agenda. “There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin,” he said.

The administration has backed pro-corporate judges whose nominations are bolstered by tens of millions of dollars worth of political advertising paid for by dark money. Trump's Supreme Court appointees have joined other Republican justices on the court, where they consistently prop up business interests—such as with the 2010 Citizens United decision allowing unlimited corporate money in elections—and attack voting rights, as in 2013 with the Shelby v. Holder decision gutting the 1965 Voting Rights Act.

In 2014, New York Times journalist Linda Greenhouse wrote that it is “impossible to avoid the conclusion that the Republican-appointed majority is committed to harnessing the Supreme Court to an ideological agenda.”

That ideological agenda has profound implications for our society as we know it, beginning with the Affordable Care Act, which the court is slated to take up on November 10, just a week after the election. But it is not just our healthcare that is at stake. At risk is the whole infrastructure of laws protecting our civil rights, as well as our democracy.

 October 16, 2020 (Friday)

The theme of the day was the palpable sense of rats leaving a sinking ship as Republicans, administration officials, and administration-adjacent people distanced themselves from the president.

There was a foreshadowing of that exodus on Wednesday, when Senator Ben Sasse (R-NE) let loose about the president in a telephone call with constituents. Sasse was an early critic of Trump but toned down his opposition significantly in the early part of the administration. On Wednesday, he reverted to his earlier position, saying he had “never been on the Trump train.” He complained about the way Trump “kisses dictators’ butts,” and went on: "The United States now regularly sells out our allies under his leadership, the way he treats women, spends like a drunken sailor…. [He] mocks evangelicals behind closed doors...has treated the presidency like a business opportunity" and has "flirted with white supremacists." He said: “What the heck were any of us thinking, that selling a TV-obsessed, narcissistic individual to the American people was a good idea?"

The theme of abandoning the administration became apparent yesterday, when officials leaked the story that intelligence officials had warned Trump against listening to his lawyer Rudy Giuliani. This was a high-level leak, and suggests that more and more staffers are starting to look for a way off the S.S. Trump.

The audience numbers for last night’s town halls was also revealing, as Biden attracted 700,000 more viewers on just one ABC outlet than Trump did on the three NBC outlets that carried his event. Biden’s town hall was the most watched event since the Oscars in February. It appears that people are simply tired of watching the president and are eager for calm and reason.

Today, a group called “43 Alumni for Biden” released an ad called “Team 46." It says that they are all lifelong Republicans, but because they recognize the qualities of leadership—including empathy-- everyone “on this team” is voting for Biden. “Let’s put Joe Biden in the White House.” The ad features a number of pictures of President George W. Bush, the forty-third president, and is narrated by someone whose voice sounds like his. Former U.S. Attorney Joyce Vance notes, “This looks awfully close to an endorsement of Biden from George W. Bush.”

Also today, the former chair of the New Hampshire Republican Committee, Jennifer Horn, urged “my fellow Republicans” not to vote for Trump’s reelection. In a piece in USA Today, Horn reminded Republicans of “the overwhelming sorrow and grief that this president” has inflicted on the country. Citing Covid-19 deaths, “cultural divides, racial unrest, economic disparity and constitutional abuses,” all of which “are just tools to be used to feed his narcissism, advance his political ambitions and line his pockets,” Horn indicted both Trump and the Republican Party that enables him.

“This election poses a unique challenge,” she wrote. “It will test not Republican vs. Democrat or Trump vs. Biden, but rather, “We the People.” It is our role in this constitutional republic, our leadership, and our dedication to the promise of America that is being tested. Trump or America,” she wrote. “We cannot have both.”

Under pressure, Trump changed course today and approved the emergency declaration for California that he denied yesterday. Such a reconsideration would normally have taken until after the election, but this one happened fast. Earlier this week, Trump tweeted: “People are fleeing California. Taxes too high, Crime too high, Brownouts too many, Lockdowns too severe. VOTE FOR TRUMP, WHAT THE HELL DO YOU HAVE TO LOSE!!!”

Today CNN began teasers for a special on Sunday that will explain how former senior Trump officials believe Trump is unfit for the presidency. According to former White House Chief of Staff, retired Marine General John Kelly, “The depths of his dishonesty is just astounding to me. The dishonesty, the transactional nature of every relationship, though it's more pathetic than anything else. He is the most flawed person I have ever met in my life."

Also today, Caroline Giuliani, the daughter of Trump’s lawyer Rudy Giuliani, urged people to end Trump’s “reign of terror” by voting for “a compassionate and decent president,” Joe Biden. “[C]orruption starts with 'yes-men' and women, the cronies who create an echo chamber of lies and subservience to maintain their proximity to power," she wrote in a piece for Vanity Fair. "We've seen this ad nauseam with Trump and his cadre of high-level sycophants (the ones who weren't convicted, anyway)." Giuliani cheered Biden’s choice of Kamala Harris for his running mate, and wrote, "in Joe Biden, we'll have a leader who prioritizes common ground and civility over alienation, bullying, and scorched-earth tactics.” [T]ogether,” she said, “we can vote this toxic administration out of office."

And yet another story from the day: a third career prosecutor from the Department of Justice resigned after publicly attacking Attorney General William Barr for abusing his power to get Trump reelected. “After 36 years, I’m fleeing what was the U.S. Department of Justice,” Phillip Halpern wrote. “[T]he department’s past leaders were dedicated to the rule of law and the guiding principle that justice is blind. That is a bygone era, but it should not be forgotten.” Noting that “Barr has never actually investigated, charged or tried a case,” Halpern expressed deep concern over Barr’s “slavish obedience to Donald Trump’s will.” “This career bureaucrat seems determined to turn our democracy into an autocracy,” he warned.

Georgetown Law Professor Paul Butler, who worked as a federal prosecutor under Barr when he was George H. W. Bush’s Attorney General, told Katie Benner of the New York Times that such criticism is “unprecedented,” and reflects Trump’s pressure on the AG. “I have never seen sitting prosecutors go on the record with concerns about the attorney general,” he said.

And yet, Barr’s willingness to bend the Justice Department to Trump’s personal will may, in the end, not be enough to keep Trump’s favor. Angry that Barr did not produce a report attacking the Russia investigation before the election, Trump just yesterday said he wasn’t happy with Barr’s performance, and might not keep him on as AG if he wins a second term.

There are signs people in the administration are preparing for Trump to lose the election. His cabinet is rushing to change regulations to lock in Trump’s goal of giving more scope to businessmen to act as they see fit. Normally, changes in regulations require setting aside time for public comment on the changes, but the administration is shortening or eliminating those periods over changes in, for example, rules allowing railroads to move highly flammable liquefied natural gas on freight trains, what constitutes “contract” work, how much pollution factories can emit, and who can immigrate to America.
 
Russell Vought, the director of the White House Office of Management and Budget, said in a statement: “President Trump has worked quickly from the beginning of his term to grow the economy by removing the mountain of Obama-Biden job-killing regulations,” and that the current push simply continues that effort. But no one is missing the quiet distancing going on in Washington as Republican lawmakers are shifting away from public support for the president.

Meanwhile, at his rally tonight in Georgia, Trump told the crowd “You should… lock up the Bidens, lock up Hillary.” The crowd then began to chant “Lock them up.” But one thing about a bully: when people finally start to turn on him, there is a stampede for the exits.

Tonight, at his Georgia rally, Trump outlined all the ways in which he was being unfairly treated, then mused: “Could you imagine if I lose?... I’m not going to feel so good. Maybe I’ll have to leave the country, I don’t know.”