Letter From An American by Heather Cox Richardson

  September 3, 2022 (Saturday)

It was a beautiful afternoon and evening on the water... and a long enough kayaking trip that I have been sound asleep with my head on my writing table for a couple of hours. Going to take that as a sign that I should go to bed and finish the history of our intelligence system another day.

This is unfiltered, by the way-- this is exactly what the sunset looked like, with the water all pink and orange.

  September 5, 2022 (Monday)

Today, on the federal holiday of Labor Day, Judge Aileen M. Cannon of the U.S. District Court for the Southern District of Florida granted former president Trump’s request for a special master to review the nearly 11,000 documents FBI agents seized in their search of the Trump Organization’s property at Mar-a-Lago on August 8.

The special master will examine the documents, some of which have the highest classification markings, to remove personal items or those covered by attorney-client privilege or those that might be covered by executive privilege (although President Joe Biden, who holds the presidency and thus should be able to determine that privilege, has waived it). The order temporarily stops the Department of Justice from reviewing or using the materials as part of their investigation into Trump’s mishandling of classified information.

That is, a Trump-appointed judge, confirmed by the Senate on November 13, 2020, after Trump had lost the election, has stepped between the Department of Justice and the former president in the investigation of classified documents stolen from the government.

Legal analysts appear to be appalled by the poor quality of the opinion. Former U.S. acting solicitor general Neal Katyal called it “so bad it’s hard to know where to begin.” Law professor Stephen Vladeck told Charlie Savage of the New York Times that it was “an unprecedented intervention…into the middle of an ongoing federal criminal and national security investigation.” Paul Rosenzweig, a prosecutor in the independent counsel investigation of Bill Clinton, told Savage it was “a genuinely unprecedented decision” and said stopping the criminal investigation was “simply untenable.” Duke University law professor Samuel Buell added: “To any lawyer with serious federal criminal court experience…, this ruling is laughably bad…. Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he’s being persecuted, when he is being privileged."

The judge justified her decision because she was “mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented.”

Energy and politics reporter David Roberts of Volts pointed out that this is a common pattern for MAGA Republicans. First, they spread lies and conspiracy theories, then they act based on the “appearance” that something is shady. “So this… judge says Trump deserves extraordinary, unprecedented latitude because of the ‘extraordinary circumstances’ and the ‘swirling questions about bias.’ But her fellow reactionaries were the only ones raising questions of bias! It’s a perfectly sealed feedback loop,” and one the right wing has perfected over “voter fraud.”

As political scientist Brendan Nyhan points out, bad-faith attacks on our democratic processes open the door for changing those processes.

Something else jumps out about the judge's construction, though: it makes MAGA Republicans the only ones whose sentiments matter. This is the same construction President Andrew Johnson used to justify his plan to end Reconstruction and remove troops from the South in December 1865. He told Congress that using the army to protect new governments there “would have divided the people into the vanquishers and the vanquished, and would have envenomed hatred rather than restored affection.” Missing from Johnson’s equation were the four million Black southerners who, in fact, welcomed the injection of the weight of the federal government into the former Confederate states.

The idea that Cannon felt obliged to reassure MAGA Republicans that Trump is being treated fairly, rather than the rest of us that the rule of law is being protected, redefines the American public and American principles.   

The neutrality of the law is central to democracy. But it is increasingly under question as Republican-appointed judges make decisions that disregard settled law, and Cannon’s decision will not help. She actually singles out Trump as having a different relationship to the law than the rest of us in a number of ways, but especially when she expresses concern over how his reputation could be hurt by an indictment: “As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”

This attack on the rule of law—the idea that the laws apply to everyone equally—has been underway since the administration of Ronald Reagan, when Attorney General Edwin Meese set out to, as he said, “institutionalize the Reagan revolution so it can’t be set aside no matter what happens in future presidential elections.” Contrary to established procedures at the Department of Justice, Reagan appointees began to quiz candidates for judgeships about their views on abortion and affirmative action, to tilt the direction in which the courts would rule.

The 1982 establishment of the Federalist Society, made up of lawyers determined to roll back the legal decisions of the post–World War II era, made it easier to tilt the courts. Those lawyers stood against what they called “judicial activism,” decisions that justified the expansion of a federal government that regulated business, provided a basic social safety net, protected civil rights, and promoted infrastructure.

As Republican policies grew less popular, party leaders focused not on adjusting their policies, but on filling judgeships with judges who would rule in their favor in lawsuits. This focus was so strong by the time of Trump’s predecessor, President Barack Obama, that then–Senate majority leader Mitch McConnell (R-KY) stalled confirmations for Obama’s nominees, banking on leaving vacancies for a new president to fill. Most dramatically, of course, he refused to permit a hearing for Obama’s nominee for a Supreme Court seat in March 2016, inventing a new rule that that date was too close to the upcoming November election to allow the nomination to proceed.

This left the seat free for Trump to appoint Neil Gorsuch, who could not make it through the Senate until McConnell used the so-called “nuclear option” to get rid of the filibuster for Supreme Court appointments, which enabled him to squeak through with just 51 votes.

Trump and McConnell—who was known for saying, “Leave no vacancy behind”—made reshaping the federal judiciary their top priority. McConnell approved the new judges with vigor, keeping the Senate confirming them during the pandemic, for example, even when all other business stopped. And he continued to push through appointments—like that of Judge Cannon—even after Trump lost the election.

Philosopher Jason Stanley of Yale University, best known for his 2018 book How Fascism Works, tweeted today: “Once you have the courts you can pretty much do whatever you want.”

Cannon’s decision addresses only the criminal investigation of the former president by the Department of Justice, and it is not clear how much of a delay it will create. While that is on hold, at least temporarily, the intelligence assessment by the Office of the Director of National Intelligence will proceed without check. It is still unclear what documents are missing, and who has had unauthorized access to the information Trump took.

This breach of our national security has the potential to be catastrophic.  

Trump certainly appears to think the game is not yet over. Once again today, he attacked the FBI and the DOJ and demanded the results of the 2020 election be overturned.

 September 7, 2022 (Wednesday)

Today, in Texas, U.S. District Judge Reed O’Connor undercut a key part of the Affordable Care Act, more popularly known as Obamacare. That law assigned to three different government bodies the task of deciding what preventative treatments—cancer screenings, vaccines, and so on—health plans must cover.

In Braidwood Management v. Secretary of Health and Human Services Xavier Becerra, various business owners and individuals opposed buying insurance that covered some of those treatments, citing either economic or religious grounds. Four individuals wanted to be able to buy health insurance that did not include PrEP drugs to prevent HIV infection, contraception, the HPV vaccine, or screenings and counseling for STDs and drug use. The plaintiffs say they do not need such care and being forced to participate in plans that cover that care “violates their religious beliefs by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.”

Two Christian businesses have similar complaints, while one other business and one other individual simply say they don’t want or need this coverage. (One says his wife “‘is past her childbearing years,’ and neither he nor his family members ‘engage in the behaviors that makes [sic] this preventive treatment necessary.”)

O’Connor is famous for his decisions against the federal government. In a 2018 decision, he tried to get rid of the ACA altogether, but the Supreme Court upheld the law by a vote of 7–2. Today, in Braidwood Management v. Becerra, he decided that the members of one of the three panels deciding preventive treatments have been appointed unconstitutionally and upheld the argument that the PrEP requirement violated the plaintiffs’ religious rights. He reserved his ruling on how to fix these issues.

Also in the news today is Moore v. Harper, a North Carolina case about whether state legislatures alone have the power to set election rules even if those laws violate state constitutions. The case is currently before the Supreme Court, and friend of the court briefs are flowing in to make arguments either for Timothy Moore, speaker of the North Carolina House of Representatives, and the rest of the petitioners, or for defendant Rebecca Harper, a North Carolina voter, and the rest of the respondents.

The case comes from North Carolina, where the state supreme court rejected a dramatically partisan gerrymander by the Republican state legislature. Republicans say that the state court cannot stop the legislature’s carving up of the state because of the “independent state legislature doctrine.”

This is a new idea that caught on in 2015, when Republicans wanted to get rid of an independent redistricting commission in Arizona. It is based on the clause in the U.S. Constitution providing that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”

Until now, states have interpreted “legislatures” to mean the state’s general lawmaking processes, which include shared power and checks and balances among the three branches of state government. Now a radical minority insists that a legislature is a legislature alone, unchecked by state courts or state constitutions that prohibit gerrymandering.

Why now?

Democrats are actually far more popular than Republicans in most states, and they win elections that are statewide, like those for the U.S. Senate, governor, or U.S. president. But state legislatures control the way state districts are carved up, and after 2010, when Republicans made a concerted effort to take over state houses through a plan called Operation REDMAP, they gerrymandered the states they control to the point that Democratic voters cannot win the number of seats their votes reflect.

Biden narrowly won Georgia in 2020, for example, but a new districting map has given Republicans an advantage of at least 15 points for control of the state House of Representatives. Democrats will have to win the state by double digits in order to flip the House. That party power leads to extremist legislation, for once in power, legislators in safe seats can operate without fear of being voted out and can vote for measures that cater to their extremist base rather than to the wishes of the majority.

This partisan gerrymandering skews Congress as well. According to political scientist Jacob Grumbach of the University of Washington, North Carolina, for example, was actually a leader in expanding access to voting in the 1970s. But after Republicans captured the legislature in 2010, they changed election laws so dramatically that in 2018, Republicans won 49.3% of the vote and yet captured 77% (10 of 13) of the state’s seats in Congress.

Grumbach identifies 2010 as a crucial shift for democracy in a number of states. “It’s all about [Republican] control,” he says. “When the [Republican Party] wins your state, it will reduce democracy.” The changes don’t reflect major changes in the states themselves; rather, both the big money interests of the Republican Party and the electoral base, which is motivated by white identity politics, want to keep voting limited.

Those advancing the independent state legislature theory want to be able to gerrymander their states, but they also point to another clause of the Constitution. It says: “Each State shall appoint, in such Manner as the Legis­lature thereof may direct, a Number of Elect­ors.” They advance the idea that the legislature can choose the state’s presidential electors regardless of which candidate the majority of the state’s voters choose.

This doctrine is, of course, what Trump and his allies pushed for to keep him in power in 2020: Republican state legislatures throwing out the will of the people and sending electors for Trump to Congress rather than the Biden electors the majority voted for.

Not surprisingly, those writing friend of the court briefs defending the independent state legislature doctrine are a who’s who of those who backed Trump’s effort to convince state officials to write slates of electors for Trump rather than Biden. They include America First Legal Foundation, which Democracy Docket identifies as connected to Trump advisor Stephen Miller and Trump’s chief of staff Mark Meadows; America’s Future (Trump’s national security advisor Michael Flynn); Claremont Institute’s Center for Constitutional Jurisprudence (John Eastman, author of the Eastman memo for overturning the 2020 election); Honest Elections Project (Leonard Leo); Public Interest Legal Foundation (Eastman and Trump lawyer Cleta Mitchell), Restoring Integrity and Trust in Elections (Trump’s attorney general Bill Barr), and so on.

In contrast, a conference consisting of the Supreme Court chief justices or chief judges of the courts of last resort of all 50 states, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, and the Virgin Islands, urged the Supreme Court not to decide that the state legislatures could operate without any oversight. Relying on the long history of state court review of the legislatures’ decisions, including those over elections, it concluded that state courts had a traditional role to play in reviewing election laws under state constitutions.

Revered conservative judge J. Michael Luttig has been trying for months to sound the alarm that the independent state legislature doctrine is a blueprint for Republicans to steal the 2024 election. In April, before the court agreed to take on the Moore v. Harper case, he wrote: “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine…and Congress amends the Electoral Count Act to constrain Congress' own power to reject state electoral votes and decide the presidency.”

And yet in March, when the Supreme Court let the North Carolina Supreme Court’s decision against the radical map stay in place for 2022, justices Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh indicated they are open to the idea that state courts have no role in overseeing the rules for federal elections.

In the one term Trump’s three justices have been on the court, they have decimated the legal landscape under which we have lived for generations, slashing power from the federal government, where Congress represents the majority, and returning it to states, where a Republican minority can impose its will. Thanks to the skewing of our electoral system, those states are now trying to take control of our federal government permanently.

 September 9, 2022 (Friday)

Today, President Joe Biden’s administration released an  “economic blueprint” to show how the new laws and policies it has put in place “are rebuilding an economy that works for working families.”

The Biden-Harris Economic Blueprint notes that Biden and Vice President Kamala Harris took office in the midst of unprecedented crises, including “an economy that for many decades had been failing to deliver for working families—with workers and middle-class families left behind, stagnating wages and accelerating costs, crumbling infrastructure, U.S. manufacturing in decline, and persistent racial disparities.” In the past year and a half, it says, the Democrats have set the nation “on a new course,” investing in a historic economic recovery based on a long-term strategy to make lasting changes to the economy that will carry the nation into the future, making sure that no one is left behind.

The blueprint calls for empowering workers through unionization and new jobs; restoring the country’s manufacturing base by investing in infrastructure and clean energy; helping families by lowering costs and expanding access to affordable and high-quality health care, child care, education, housing, and so on; promoting industrial competition to open the way for entrepreneurs and bring down costs; and “rewarding work, not wealth,” by reforming taxation so that taxes do not go up on anyone who makes less than $400,000 a year, and that the wealthy and corporations pay their fair share.

This blueprint pulls together much of what Biden has been saying all along, and it is quite clear about what this means. What the blueprint calls “new architecture” must, it says, “replace the old regime.” The old system sent economic gains to the top while outsourcing industries, and the end of public investment hollowed out the middle class. The new system will drive “the economy from the bottom up and middle out” because that system “ensures that growth benefits everyone.”

While Biden and Harris are focused on the economy and the future, the Department of Justice is still handling crises created by the former president.

Yesterday the Department of Justice (DOJ) filed a motion to request a partial stay of Judge Aileen Cannon’s order last week, the one that said the DOJ couldn’t use the items the FBI seized when they searched the Trump property at Mar-a-Lago on August 8.

In her Civil Discourse newsletter, law professor, host of the Sisters In Law podcast, and former U.S. attorney Joyce White Vance explained that the DOJ has asked for that order to be stayed as far as it concerns the classified records. That request is separate from an appeal of the order itself to the Eleventh Circuit Court of Appeals, which the DOJ has indicated it will undertake. With the motion it filed yesterday, the DOJ wants the court to hold off on enforcing the judge’s order that the government can’t review and use the materials seized “for criminal investigative purposes,” and the part that says the government must turn the records over to a special master.

The DOJ pointed out that the intelligence community’s assessment of the damage done to our national security is tied together with the ongoing criminal investigation. Because the FBI is central to both, the judge’s order has shut down the national security review, which is vitally important to the country.

“In plain English,” Vance writes, “DOJ is asking how the guy who took the classified nuclear secrets he wasn’t entitled to have is harmed if law enforcement gets to look at those materials to protect our national security.”

The judge has given Trump’s lawyers until Monday to respond.

Meanwhile, at Just Security, Michael Stern points out that in Nixon v. GSA,  everyone—including President Richard M. Nixon—agreed that “the very specific privilege protecting against disclosure of state secrets and sensitive information concerning military or diplomatic matters…may be asserted only by an incumbent President,” suggesting that Trump has no grounds to assert executive privilege over the classified information seized.

Also today, Judge Donald Middlebrooks of the U.S. District Court for the Southern District of Florida dismissed a lawsuit Trump launched in March 2022 against Hillary Clinton and a number of his favorite villains alleging that “the Defendants, blinded by political ambition, orchestrated a malicious conspiracy to disseminate patently false and injurious information about Donald J. Trump and his campaign, all in the hopes of destroying his life, his political career and rigging the 2016 Presidential Election in favor of Hillary Clinton.” The people he was suing dismissed his lawsuit, saying, “[w]hatever the utilities of [the Amended Complaint] as a fundraising tool, a press release, or a list of political grievances, it has no merit as a lawsuit.” The judge agreed and demolished the 193-page lawsuit as lacking evidence, legal justification, and good faith.  

The lawsuit rehashed the Russia investigation, which Trump used to great effect during his term to deflect investigations into his wrongdoing. Two investigations, one by an independent investigation by Special Counsel Robert Mueller and another by the Republican-dominated Senate Intelligence Committee, revealed that Russia had attacked the U.S. presidential election in 2020 and that the Trump campaign had, at the very least, played along.

But by using the machinery of government, including by putting loyalists into key positions, Trump reversed reality to argue that he was an innocent victim and that the investigators were actually the ones who had broken the law. He and his allies saturated the media with accusations that government officials, including FBI agents—many of whom he named in this lawsuit—were members of the “Deep State,” out to get him.

Trump is resurrecting this old trope at a time when he is in the midst of yet another investigation for which the evidence against him is monumental. Now out of power, though, he has had to turn to the courts and, interestingly, contrived to get this case in front of Judge Cannon, who was rushed onto the court with very little experience after Trump had already lost the 2020 election.

  September 11, 2022 (Sunday)

I was playing around in yesterday's post, because my "crazy rare find at Buddy's wharf" was, of course, Buddy himself.

Took yesterday off and am going to take tonight, too. First time since September 15, 2019, I've taken more than a single day off, but our wedding seems like a worthy occasion, no?

[Photo by Leonie Glen.]

 September 12, 2022 (Monday)

Many thanks for all your good wishes on our marriage. Someone saw the picture and wrote, “Heather is betting on the future.”

I am indeed.

And there are reasons to be hopeful about that future.

When I last wrote about the news, on Friday, Ukraine was launching a counteroffensive against the Russian troops occupying their territory, but it was still too early to be sure of what was happening. Now it is clear: over the weekend, Ukrainian forces drove Russian troops back, retaking more than 1000 square miles of Ukrainian territory and handing Russia a humiliating operational defeat.

Ukraine had been indicating it would launch its offensive in the south, prompting Russia to move 15,000 to 25,000 troops to that front. Instead, it pushed forward farther north, moving with lightning speed as the Russian occupiers, already suffering from low morale, crumbled. Ukrainian plans reflected cooperation with U.S. intelligence, as well as support from weapons systems provided by allies, including HIMARS (High Mobility Artillery Rocket Systems) from the U.S.

While this will not end the crisis, it has put Russia on the defensive and turned the war in Ukraine’s favor. Noting that Russian soldiers abandoned their equipment and fled, Europe specialist Anne Applebaum noted that “[t]he fundamental difference between Ukrainian soldiers, who are fighting for their country’s existence, and Russian soldiers, who are fighting for their salary, has finally begun to matter.”

This shift in the war continues the process of undermining the argument right-wing politicians have made for ending liberal democracy. They claim that it is inefficient, making democratically led countries unable to react as quickly to the modern world as countries with a strong leader, and that the secular values of democracy that emphasize equality weaken a country’s morals and ultimately weaken the country itself.

As recently as May 2021, Senator Ted Cruz (R-TX) shared a Russian propaganda video about its troops and suggested they were superior to the American military, which was trying to demonstrate that it includes all Americans equally. He tweeted: “Holy crap. Perhaps a woke, emasculated military is not the best idea….”

But Russia’s disastrous invasion of Ukraine, thwarted by Ukraine and its democratic allies, has undermined the myth of an invincible Russian army, while the invaders’ commission of war crimes has made it clear they have no moral ground to stand on. Meanwhile, internal arguments in Russia as the economy has tanked and the war gone badly have created a rash of “accidental” deaths of senior officials, suggesting that autocratic governments are anything but stable. Further, Applebaum suggests, since Putin tied his legitimacy to the success of the Ukraine invasion, its failure might turn out to be his own as well.

Former president Trump openly admired Russian president Vladimir Putin, and Fox News Channel personality Tucker Carlson followed suit, backing Putin’s characterization of his invasion of Ukraine. Carlson has also celebrated Hungarian prime minister Viktor Orbán, who has called for the replacement of liberal democracy with “illiberal democracy,” or “Christian democracy,” claiming to defend patriarchal and Christian systems. That process has involved a takeover of the country’s media, crackdowns on opposition, rampant corruption, and restrictions on voting.

Carlson and right-wing leaders have praised the antiabortion and anti-immigration policies of Orbán’s political party. In September 2021, former vice president Mike Pence spoke in Budapest at a forum denouncing immigration and urging traditional social values, where he told the audience he hoped that the U.S. Supreme Court would outlaw abortion thanks to the three justices Trump put on the court. In 2022, the Conservative Political Action Conference (CPAC) was held in Budapest, and months later, at CPAC’s convention in Texas, Orbán was a keynote speaker.

In July the European Parliament (EP), which passes European legislation, took a strong stand against Hungary’s anti-LGBTQ laws and Orbán’s attack on “democracy, the rule of law, and fundamental rights,” and withheld billions of dollars from the country. In response, Orbán’s Fidesz party passed a resolution to weaken the European Parliament, saying European democracy was at a “dead end.” It also called for members of the EP to be chosen not by the voters of their countries, but by the parliaments of those countries.

This week, members of the European Parliament will debate whether the values of the European Union are under systemic threat in Hungary. The EP is expected to declare that Hungary can no longer be considered a full democracy and consider suspending its rights within the European Union.

And there are other signs that right-wing extremism is facing resistance. Today, more than 150 prominent Michigan Republicans—including a former head of the Michigan Republican Party—backed Democratic governor Gretchen Whitmer for reelection. The current Michigan Republican Party has backed far-right candidates for governor, secretary of state, and attorney general and has lined up behind Trump, who made attacking Whitmer a feature of his 2020 campaign. Those Republicans jumping behind the Democratic governor note that she has signed more than 900 bipartisan bills into law and has focused on issues that are good for everyone, regardless of party.

"During her time as governor, she has focused on growing our economy with major investments, strengthening our skilled workforce, investing in the education of our children, and making government work for us,” said former Republican representative Joe Schwarz. “I know she will continue to advocate on behalf of hardworking Michiganders and that's why I'm proud to support her for re-election this fall."

Others pointed to her protection of reproductive rights as key to their support. Whitmer is currently polling 13 points higher than her opponent, Tudor Dixon, who opposes abortion without exception.

In the last week, federal grand juries have issued subpoenas to about 40 people associated with Trump’s effort to overturn the 2020 election, including the money raised over the lie that the election was stolen. Legal affairs columnist for the Los Angeles Times Harry Litman noted that many of the recipients were junior staffers who can testify to Trump’s behavior around January 6 and who have no legal reason not to cooperate.

Last week, excerpts from a forthcoming book by former U.S. attorney for the Southern District of New York Geoffrey S. Berman revealed that Trump tried to use the Department of Justice  against those he considered his enemies and to protect those he considered his friends. The Justice Department is supposed to enforce the law impartially, but “[t]hroughout my tenure as U.S. attorney,” Berman says in the book, “Trump’s Justice Department kept demanding that I use my office to aid them politically, and I kept declining—in ways just tactful enough to keep me from being fired.”

Today the Senate Judiciary Committee told Attorney General Merrick Garland it would investigate the allegations.

Finally, last night Trump arrived unexpectedly at Dulles International Airport outside Washington, D.C., and today photographers recorded him meeting with a group of men on the grounds of his Virginia golf course, although they did not appear to be playing or even to have clubs.

 September 14, 2022 (Wednesday)

It appears that John Durham’s investigation into why the FBI opened an investigation into the ties between the 2016 Trump campaign and Russian operatives is coming to an end.

Durham’s investigation was a prime example of Trump’s attempt to use the Department of Justice not to enforce the nation’s laws, but to hurt his enemies, a charge former U.S. attorney for the Southern District of New York Geoffrey Berman has made in his new book. Trump, Berman said, wanted his friends protected and his enemies—including former secretaries of state John Kerry and Hillary Clinton—prosecuted.

In April 2019, the month after Special Counsel Robert Mueller’s Report On The Investigation Into Russian Interference in the 2016 Presidential Election finally saw daylight, Attorney General William Barr tapped United States Attorney for the District of Connecticut John Durham to investigate the circumstances under which the FBI began to look into Russian interference in the election in the first place.

The appointment was clearly an attempt to continue to distract people from the results of the Mueller report, which Barr had had an instrumental role in diminishing. Barr took office on February 14, 2019, just as Mueller was finishing his report. As Mueller’s superior, Barr got a copy of the report before anyone else, and he spun it to the media, claiming it exonerated the president and his team. In fact, Mueller established that Russia had illegally intervened in the election to benefit Trump and that the campaign “expected it would benefit electorally from information stolen and released through Russian efforts.” Mueller complained to Barr about the spin, but it was too late: the public had bought it.

Trump and his allies jumped on Durham's investigation, promising it would prove that FBI agents were part of a “Deep State” and that Durham would uncover “the crime of the century.” In December 2020, after Trump had lost the election, Barr revealed that he had made Durham a special counsel the previous October so that Durham could continue his work into the next administration.

But the investigation itself fizzled. Durham pressed charges against only three people. One pleaded guilty to altering an email and was sentenced to probation and community service. A grand jury alleged two others lied to the FBI. One was acquitted of the charges last May. The other is supposed to go on trial next month but has asked a judge to throw out the case for lack of evidence. But Durham’s three-year investigation did provide talking points for those attacking the FBI’s Russia investigation, keeping alive Trump’s false claims that it was just a “witch hunt.”

Trump’s politicization of the Department of Justice was a profound attack on the principles of democracy. Using the law to attack enemies is a hallmark of authoritarians—just ask opposition leader Alexsei Navalny in Russia, who has been sentenced to incarceration on trumped-up charges to get him out of Russian president Vladimir Putin’s way—while it also encourages lawbreaking from those who don’t fear legal consequences.

We have seen that sense of being above the law today in stories about the willingness of Mississippi officials, including former governor Phil Bryant, to work with former NFL player Brett Favre to divert about $5 million in federal welfare funds from helping people in poverty to building a volleyball facility at the University of Southern Mississippi, where his daughter was a volleyball player.

We have seen it in the anger that Trump allies show when law enforcement treats them as it would anyone suspected of lawbreaking. MyPillow chief executive officer Mike Lindell explained by video that yesterday FBI agents took his phone and that “what we’ve done is weaponize the FBI…it’s disgusting….” Agents executed the search warrant as part of a federal investigation into the alleged breach of Colorado voting machines.

We have seen it in Jeffrey Clark’s response today to ethics charges brought against him by the D.C. Bar. Clark was employed by the Department of Justice in late 2020, when he worked to swing the department behind Trump’s lie that he had won the election, a shift that would have utterly destroyed the rule of law in the U.S. Now he claims the D.C. Bar cannot punish him because normal rules of behavior don’t apply. In a filing today, he told the bar: “[T]the President has an absolute right to seek legal and other forms of advice…and officers of the United States have an absolute duty and corresponding privilege to provide their opinions on a confidential basis.”

The turning of the courts into a tool for partisan advantage has been part of the Republican project since 1986, when Reagan’s attorney general Edwin Meese vowed to “institutionalize the Reagan revolution so it can’t be set aside no matter what happens in future presidential elections.” That partisan use of the courts inspired then–Senate majority leader Mitch McConnell (R-KY) to help Trump replace about 30% of the federal bench and to swing the Supreme Court to the far right with three new justices.

An examination by Politico’s Josh Gerstein and Kyle Cheney shows that Trump’s judges were less experienced on the bench and had spent more time in politics than the judges appointed by other presidents, and that Trump expected them to side with him, calling them “my judges.” “If it’s my judges, you know how they’re gonna decide,” he told evangelical leaders in 2016. And some of them have, indeed, sided with the former president in surprising ways, most recently when Judge Aileen Cannon, confirmed after Trump lost the 2020 election, agreed with his request for a special master to review the government documents recovered by the government from Mar-a-Lago.

Trump’s judges have revealed a willingness to break precedent to achieve political ends, and nowhere is that clearer than in the willingness of the Supreme Court to replace long-settled law with their own preferences, most notably in their Dobbs v. Jackson Women’s Health decision overturning the 1973 Roe v. Wade decision protecting the right to abortion, but also in West Virginia v. EPA, limiting Congress’s ability to delegate regulatory authority to agencies, and so on.

That replacement of settled law with what looks to be political preferences has tanked popular faith in the Supreme Court. On Monday, Justice Elena Kagan noted that, ​​“Judges create legitimacy problems for themselves…when they instead stray into places where it looks like they’re an extension of the political process or when they’re imposing their own personal preferences.” People should be able to expect that “changes in personnel don’t send the entire legal system up for grabs.”

President Joe Biden appears to be trying to restore the rule of law to the Department of Justice, going out of his way to note that he is not involved with Attorney General Merrick Garland’s decisions. Increasingly, it looks like Garland’s Justice Department is bearing down on those who considered themselves untouchable.

The trials and convictions of those who participated in the January 6 attack on the U.S. Capitol continue. Yesterday, three more rioters were found guilty of multiple charges. Twenty-five year old Patrick McCaughey III, of Ridgefield, Connecticut, who crushed Metropolitan Police Department officer Daniel Hodges in a doorway, faces decades in prison.  

Also today,  Pamela Brown, Evan Perez, Jeremy Herb, and Kristen Holmes reported at CNN that not all of Trump’s loyalists are still acting as if they are above the law. Trump’s White House chief of staff Mark Meadows has complied with a Department of Justice subpoena.

Perhaps most revealing of the restoration of the rule of law at the Justice Department is that former attorney general Barr has been on the television circuit defending the FBI and Biden’s Department of Justice from Trump’s fury over the FBI’s execution of a search warrant at Mar-a-Lago that yielded documents—or empty folders—bearing the highest classified markings.

That is, the same man who sponsored Durham’s political mission has recently begun to speak up for the rule of law.

  September 16, 2022 (Friday)

The big story in the news over the past couple of days is that Florida governor Ron DeSantis chartered two planes to fly about 50 migrants, most of whom were from Venezuela, to Martha’s Vineyard, off the coast of Massachusetts.

The story is still developing. Although DeSantis is the governor of Florida, the migrants appear to have come from Texas, and it currently appears that they were lured onto the planes—paid for with taxpayer money—with the false promise of work and housing in New York City or Boston. In addition, there are allegations from a lawyer working with the migrants that officials from the Department of Homeland Security falsified information about the migrants to set them up for automatic deportation. As I write this, it is not clear what their actual status is: have they applied for asylum and been processed, or are they undocumented immigrants?

As Josh Marshall of Talking Points Memo says, none of it adds up.

None of it, that is, except the politics. DeSantis apparently dispatched the migrants with a videographer to take images of them arriving, entirely unexpectedly, on the upscale island, presumably in an attempt to present the image that Democratic areas can’t handle immigrants (in fact, more than 12% of the island’s 17,000 full-time residents were born in foreign countries, and 22% of the residents are non-white). But the residents of the island greeted the migrants; found beds, food, and medical care; and worked with authorities to move them back to the mainland where there are support services and housing. In the meantime, there are questions about the legality of DeSantis chartering planes to move migrants from state to state.

There are two big stories behind DeSantis’s move.

First is that the Republicans are on the ropes over the Supreme Court’s June 2022 Dobbs v. Jackson Women’s Health decision and the capture of the party by its MAGA wing. That slide into radical extremism means the party is contracting, but it is not clear at all that base voters will show up in the midterms without former president Trump on the ballot.

Rallying voters with threats of “aliens” swamping traditional society is a common tactic of right-wing politicians; it was the central argument that brought Hungary’s Viktor Orbán into his current authoritarian position. Republican governors Greg Abbott of Texas and Doug Ducey of Arizona have been bussing migrants to Washington—about 10,000 of them—saying they would bring the immigrant issue to the doorsteps of Democrats. Now DeSantis is in on the trick.

Immigrants are nothing new to northern cities, of course. The U.S. is in a period of high immigration. Currently, 15% of the inhabitants of Washington, D.C., are foreign born, only slightly less than the 16.8% of the population of Texas that is foreign born. About 29% of the inhabitants of Boston come from outside U.S. borders, as do 36% of the inhabitants of New York City.  

In the lead-up to the midterms, Republicans have tried to distract from their unpopular stands on abortion, contraception, marriage equality, and so on, by hammering on the idea that the Democrats have created “open borders”; that criminal immigrants are bringing in huge amounts of drugs, especially fentanyl; and that Biden is secretly flying undocumented immigrants into Republican states in the middle of the night. Beginning in July, they began to insist that the country is being “invaded.”

In fact, the border is not “open.” Fences, surveillance technology, and about 20,000 Border Patrol agents make the border more secure than it has ever been. That means apprehensions of undocumented migrants are up, with U.S. Customs and Border Protection (CPB) recording more than 3 million encounters at the border since January 2021. Those high numbers reflect people stopped from coming in and are artificially inflated because many who are stopped try again. CBP estimates that about 27% of those stopped at the border are repeat apprehensions.

Although much fentanyl is being stopped, some is indeed coming in, but through official ports of entry in large trucks or cars, not on individual migrants, who statistically are far less likely than native-born Americans to commit crimes. And the federal government is not secretly flying anyone anywhere (although, ironically, DeSantis is); U.S. Immigration and Customs Enforcement (ICE) sometimes moves migrants between detention centers, and CPB transfers unaccompanied children to the Department of Health and Human Services. These flights have been going on for years.

The second story is the history of American immigration, which is far more complicated and interesting than the current news stories suggest.

Mexican immigration is nothing new; our western agribusinesses were built on migrant labor of Mexicans, Japanese, and poor whites, among others, in the late 19th century. From the time the current border was set in 1848 until the 1930s, people moved back and forth across it without restrictions. But in 1965, Congress passed the Hart-Celler Act, putting a cap on Latin American immigration for the first time. The cap was low: just 20,000, although 50,000 workers were coming annually.

After 1965, workers continued to come as they always had, and to be employed, as always. But now their presence was illegal. In 1986, Congress tried to fix the problem by offering amnesty to 2.3 million Mexicans who were living in the U.S. and by cracking down on employers who hired undocumented workers. But rather than ending the problem of undocumented workers, the new law exacerbated it by beginning the process of militarizing the border. Until then, migrants into the United States had been offset by an equal number leaving at the end of the season. Once the border became heavily guarded, Mexican migrants refused to take the chance of leaving.

Then, in the 1990s, the North American Free Trade Agreement (NAFTA) flooded Mexico with U.S. corn and drove Mexican farmers to find work in the American Southeast. This immigration boom had passed by 2007, when the number of undocumented Mexicans living in the United States began to decline as more Mexicans left the U.S. than came.  

In 2013 a large majority of Americans, both Republicans and Democrats, backed a bill to fix the disconnect caused by the 1965 law. In 2013, with a bipartisan vote of 68–32, the Senate passed a bill giving a 13-year pathway to citizenship for millions of undocumented immigrants, who would have to meet security requirements. It required employers to verify that they were hiring legal workers. It created a visa system for unskilled workers, and it got rid of preference for family migration in favor of skill-based migration. And it strengthened border security. It would have passed the House, but House Speaker John Boehner (R-OH) refused to bring it up for a vote, aware that the issue of immigration would rally Republican voters.

But most of the immigrants coming over the southern border now are not Mexican migrants.

Beginning around 2014, people began to flee "warlike levels of violence" in El Salvador, Guatemala, and Honduras, coming to the U.S. for asylum. This is legal, although most come illegally, taking their chances with smugglers who collect fees to protect migrants on the Mexican side of the border and to get them into the U.S.

The Obama administration tried to deter migrants by expanding the detention of families, and it made significant investments in Central America in an attempt to stabilize the region by expanding economic development and promoting security. The Trump administration emphasized deterrence. It cut off support to Central American countries, worked with authoritarians to try to stop regional gangs, drastically limited the number of refugees the U.S. would admit, and—infamously—deliberately separated children from their parents to deter would-be asylum seekers.

The number of migrants to the U.S. began to drop in 2000 and continued to drop throughout Trump’s years in office. The Trump administration gutted immigration staff and facilities and then cut off immigration during the pandemic under Title 42, a public health order.

The Biden administration coincided with the easing of the pandemic and catastrophic storms in Central America, leading migration to jump, but the administration continued to turn migrants back under Title 42 and resumed working with Central American countries to stem the violence that is sparking people to flee. (In nine months, the Trump administration expelled more than 400,000 people under Title 42; in Biden’s first 18 months, his administration expelled 1.7 million people.)

The Biden administration sought to end Title 42 last May, but a lawsuit by Republican states led a federal judge in Louisiana to keep the policy in place. People arriving at the U.S. border have the right to apply for asylum even under Title 42.

There are a lot of moving pieces in the immigration debate: migrants need safety, the U.S. needs workers, our immigrant-processing systems are understaffed, and our laws are outdated. They need real solutions, not political stunts.

  September 18, 2022 (Sunday)

Today's photo is a meditation on love and faith found early one morning in "a collection of stuff in the yard of a man who lives on the outermost inhabited island on the coast of Maine," as my photographer friend Peter Ralston put it.

I'll see you tomorrow.

[Photo, "The Source," by Peter Ralston]

 September 20, 2022 (Tuesday)

There is big news today out of Russia, where the legislative body abruptly passed harsh penalties on those who don’t report to military duty, who surrender, or who refuse to fight against Ukraine. Meanwhile, Russian-installed officials in the parts of Ukraine occupied by Russia announced referenda for later this week on joining those territories to Russia.

Once those territories vote to join Russia—as authorities will undoubtedly declare, no matter what any actual vote might look like—Russia says it will see any attack on that region by Ukraine as an attack on Russia itself.

This looks quite as if Putin is worried the recent Ukrainian advance is going to force the Russians out of the Ukrainian territory they invaded in 2014, and is setting up a scenario to be able to hold that territory, at least.

Today, Putin was scheduled to make a major speech, but after several hours of delay, media figures announced the speech would take place tomorrow.

The news out of Russia made the Moscow Stock Exchange drop almost 7%.

Secretary of State Antony Blinken said that if Russia does, in fact, “stage these sham ‘referenda’, the United States and the international community will never recognize Russia’s claims to any purportedly-annexed parts of Ukraine. We continue to stand with the people of Ukraine.”

As Russia staggers, countries that were formerly in its orbit are realigning with the movement toward liberal democracy. Today the president of Kazakhstan, Kassym-Jomart Tokayev, wrote an op-ed declaring, “There is simply no viable alternative to globalization, interdependence and the international rules-based order.” So, he said, “we are doubling down on the liberal, international, open policies that have driven such a dramatic increase in standards of living around the world.” He promised to decentralize and distribute power throughout Kazakhstan, strengthen parliament and local authorities, encourage political parties, and limit presidential terms, all to “move toward a new…model of a presidential republic with a stronger parliament and a more accountable government.”

Meanwhile, at the United States Agency for International Development today, Blinken said that the U.S. and partners “came together in support of the benefits that flow from democratic governance. If we continue to invest in and improve upon our democracies, they will not only persevere, they will prevail.”

Protests have broken out in Russia’s ally Iran as well. Women infuriated by the death in custody of Mahsa Amini, 22, arrested by Iran's morality police for allegedly breaking the law regulating the headscarf covering her head and loose clothing disguising her body, are burning their headscarves and shouting “death to the dictator,” meaning Iran’s Supreme Leader Ali Khamenei, who is old and ill. They are supported by men, who are helping to fight off the police trying to stop the protests.

Here in the U.S., federal agencies are sending teams with hundreds of employees to Puerto Rico to help respond to the devastation left by Hurricane Fiona, which left the island without power and with severe flooding when it hit recently. When Hurricane Maria hit in 2017, more than 3000 residents died. Since then the Federal Emergency Management Agency has built warehouses and moved in generators and other commodities.

Senate majority leader Chuck Schumer (D-NY) announced yesterday that the Senate will vote later this week on the DISCLOSE Act, sponsored by Senator Sheldon Whitehouse (D-RI), which requires super PACs and other groups that do not have to disclose their donors—so-called dark money groups—to identify those who give $10,000 or more during an election season. It would also prohibit foreign entities from contributing at all. In a blow against those who have helped to pack our courts, it would require anyone spending money to advance the candidacies of judicial nominees to disclose their donors, too.

Thanks to the Supreme Court's 2010 Citizens United decision, such advocacy groups can take unlimited money from individuals, corporations, or other entities so long as they don’t directly coordinate with a candidate, and they do not have to identify who the donors are. “Their ruling has paved the way for billions in unlimited campaign contributions by Super PACs and other dark money groups over the last decade,” Schumer said. “Ordinary citizens, meanwhile, have had their voices drowned out by elites who have millions to spare for political donations.”

Pointing to the recent $1.6 billion donation to a new right-wing political advocacy trust, President Joe Biden noted that the public found out about that donation only because someone tipped off a reporter.

Republicans are expected to oppose the bill.

Today, three of the migrants Florida governor Ron DeSantis flew from Texas to Martha’s Vineyard filed a class action lawsuit against DeSantis, secretary of the Florida Department of Transportation Jared W. Purdue, the state of Florida, the Florida Department of Transportation, and others, for planning and executing “a premeditated, fraudulent, and illegal scheme” to exploit vulnerable migrants—in this country legally—“for the sole purpose of advancing their own personal, financial and political interests.”

The suit alleges that the defendants trolled the streets outside a migrant shelter in Texas offering humanitarian assistance, “then made false promises and false representations that if Plaintiffs and class members were willing to board airplanes to other states, they would receive employment, housing, educational opportunities, and other like assistance upon their arrival.” Once they agreed, the defendants put them up in hotels away from the migrant center where someone might tell them they were being abused.

The defendants allegedly paid $615,000 to charter two private planes ($12,300 per passenger) and told the plaintiffs they were being sent to Washington, D.C., or to Boston. While on the plane, the defendants gave the migrants “a shiny, red folder that included other official-looking materials, including a brochure entitled ‘Massachusetts Refugee Benefits’” full of false information.

The migrants were dropped on Martha’s Vineyard in the evening without food, water, or shelter, and with no one aware they were coming. Then the defendants disappeared and refused to answer calls from the plaintiffs to learn what was going on. This, the plaintiffs say, was “cruelty akin to what they fled in their home country.” They allege the defendants violated their Fourth and Fourteenth Amendment rights as well as the 1964 Civil Rights Act.

The next day, DeSantis claimed responsibility. Since then he has claimed on Fox News Channel personality Sean Hannity’s show that the migrants traveled voluntarily and that they signed consent forms, although he could explain how he had authority to move migrants from Texas when he is the governor of Florida only by saying that migrants come to Florida, but “the problem is we’re not seeing mass movements of them…. It’s just coming in onesie-twosies.” So he had those likely to come to Florida rounded up in Texas.

Today he called the lawsuit “political theater.”  

As they indicated last night they would, Trump’s lawyers today refused to produce any evidence that Trump had actually declassified any of the national security material FBI agents seized at Mar-a-Lago on August 8. They also told Special Master Judge Raymond Dearie that they wanted to examine the records the agents took before they decided to assert that Trump had declassified them, although they do not have the relevant security clearances. Dearie seemed disinclined to acquiesce to their request.

And tonight, the Department of Justice cited Trump’s lawyers’ refusal to assert that he declassified any of the material in its comprehensive request for a stay of Judge Aileen Cannon’s order stopping “the government from using its own records with classification markings—including markings reserved for records of the highest sensitivity—in an ongoing criminal investigation into whether those very records were mishandled or compromised.”     

Earlier this month, New York Attorney General Letitia James rejected an offer from the Trump Organization to settle a civil case concerning whether Trump lied about the value of his properties to manipulate tax laws or bank loans. Tomorrow at 10:30 a.m. (Eastern), she will make a major announcement.